










































* 


































SUITS BROUGHT BY THE UNITED STATES TO CANCEL 
DEEDS TO INDIAN ALLOTMENTS. 


WASHINGTON t GOVERNMENT PRINTING OFFICE.: 1S08 








DEPARTMENT OF JUSTICE. 


/^/f 

~2T£ 



BRIEF. 


SUITS BROUGHT BY THE UNITED STATES TO CANCEL 
DEEDS TO INDIAN ALLOTMENTS. 


Note. —This brief is for the use of Government 
attorneys only. It is believed that its use will 
result in saving much time and labor which would 
otherwise be spent in original research. 

The authorities cited are freely quoted in order 
that their applicability to any particular case may 
be readily determined and for the further reason 
that easy access to Federal and State reports is not 
always possible. 










0. OF 0. 

MIG 29 1908 


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CONTENTS. 


Page. 

Jurisdiction of Federal courts... 5 

Guarantees of the United States with respect to Indian lands. 7 

Indian treaties are the supreme law of the land. 8 

The relation between the United States and the Indians is peculiar. 9 
Restrictions on the power to alienate or otherwise dispose of Indian 

lands are valid.». 13 

Subsequent removal of restrictions does not validate the void instru¬ 
ment ... 23 

Allotment in severalty is merely a modification of the Indian title.. 24 

Power of the United States to appear as sole party complainant .... 25 

The United States has constitutional authority to sue. 37 

Cases which establish the right of the United States so to appear.... 47 

Citizenship of allottee does not preclude the exercise of the power.. 60 

Continuance of the power; political question, and courts are bound 

by attitude of Congress. 68 

Requisites of a bill to remove cloud from title. 72 

Nature of remedy and character of instrument to be cancelled; 

State statutes may be enforced in Federal courts. 72 

As to possession of the land. 83 

Vacant land. 85 

Ejectment sometimes inadequate. 89 

Possession by defendant immaterial where there is any 

ground of equity jurisdiction. 96 

Possession by defendant immaterial where several defend¬ 
ants are joined in one bill to avoid multiplicity of suits; 

such a bill is not multifarious. 104 

Tender of purchase money unnecessary. 132 

( 3 ) 


















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JURISDICTION OF FEDERAL COURTS. 

The judicial power of the United States shall ex¬ 
tend to all cases in law and equity * * *; to all 

controversies to which the United States shall be a 
party. (Const., Art. Ill, sec. 2.) 

The Federal courts have jurisdiction of all contro¬ 
versies in which the United States is a party, regard¬ 
less of the amount involved. (United States v. Say- 
ward, 160 U. S., 493.) 

In that case the specific question was raised, it 
being contended by the defendant that the jurisdic¬ 
tional amount named in the judiciary act applied to 
cases brought by the United States. And the Su¬ 
preme Court, by Mr. Justice Harlan, said that it is 
clear that a Circuit Court can not, under that statute, 
take original cognizance of a case arising under the 
Constitution or laws of the United States, or treaties 
made, or which shall be made, under their authority, 
or of a controversy between citizens of different 
States, or of a controversy between citizens of a 
State and foreign States, citizens or subjects, unless 
the sum in dispute, exclusive of interest and costs, 
exceeds $2,000; but he says (p. 497): 

But that can not be said of the reference in 
the statute to a controversy in which the 
United States are plaintiffs or petitioners, or 
to one between citizens of the same State 
claiming lands under grants of different States. 
* * * The United States being plaintiffs 
in this action, the Circuit Court had jurisdic- 
( 5 ) 


6 


tion without regard to the value of the matter 
in dispute. 

United States v. Flournoy Live-Stock & 
Real-Estate Company et aL, 71 Fed., 578. 

In the above case the United States appeared as 
complainant in equity to oust lessees and conveyees 
under leases and deeds to lands the lease and alien¬ 
ation of which were prohibited by statute. The 
court says: 

The first question argued by counsel is that 
of the jurisdiction of the court, based upon 
the fact that the bill avers that the amount 
in controversy exceeds $2,000, which is denied 
in the answers. If, under the statutes now 
in force, the restriction as to amount applied 
to cases where the United States is plaintiff 
or complainant, the contention would have 
force; but it does not, and therefore it is 
immaterial whether the amount in contro¬ 
versy exceeds $2,000 or not, because this 
court has jurisdiction of all cases brought by 
the United States, regardless of the amount 
involved. 

Section 16 of the Oklahoma enabling act of June 
16, 1906 (34 Stat., Part I, 276), as amended by the 
act of March 4, 1907 (34 Stat., Part I, 1286), pro¬ 
vides that all civil causes, proceedings, and matters 
pending in * * * or in the United States Court 
or United States Court of Appeals in the Indian 
Territory arising under * * * or in which the 

United States may be a party * * * shall be 

transferred to the proper United States Circuit or 
District Court established by that act. 


































































































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7 


The judicial power of the United States also 
extends to all cases in law and equity arising under 
* * * the laws of the United States, and trea¬ 

ties made, or which shall be made, under their author¬ 
ity. And the Oklahoma enabling act provides for 
the transfer to the proper United States Circuit or 
District Courts of all cases arising under the Consti¬ 
tution, laws, or treaties of the United States. (See 
section 16 of the enabling act.) 

GUARANTEES OF THE UNITED STATES WITH RESPECT TO 
THE INDIAN TITLE. 

The act of Congress of May 28, 1830 (4 Stat., 411), 
“ An act to provide for an exchange of lands with the 
Indians residing in any of the States or Territories, 
and for their removal west of the river Mississippi,” 
provides, section 3— 

that in the making of any such exchange or 
exchanges, it shall and may be lawful for the 
President solemnly to assure the tribe or 
nation with which the exchange is made, that 
the United States will forever secure and guar¬ 
anty to them , and their heirs or successors, the 
country so exchanged with them. 

The treaty with the Choctaws and Chickasaws of 
June 22, 1855 (11 Stat., 611), provides, Article I, 
second paragraph, as follows: 

And pursuant to an act of Congress ap¬ 
proved May 28, 1830, the United States do 
hereby forever secure and guarantee the lands 
embraced within the said limits, to the mem¬ 
bers of the Choctaw and Chickasaw tribes, 
their heirs and successors, to be held in com¬ 
mon, etc. 


8 


The treaty of August 7, 1856, with the Creeks and 
Seminoles, provides, Article III (11 Stat., 699): 

The United States do hereby solemnly guar¬ 
antee to the Seminole Indians the tract of 
country ceded to them by the first article of 
this convention; and to the Creek Indians, the 
lands included within the boundaries defined 
in the second article hereof. 

The treaty with the Cherokees of February 14, 1833 
(7 Stat., 414), provides, Article I: 

The United States agree to possess the 
Cherokees, and to guarantee it to them for¬ 
ever, and that guarantee, is hereby pledged, of 
seven millions of acres of land, to be bounded 
as follows, etc. 

TREATIES ARE THE SUPREME LAW OF THE LAND. 

Indian treaties are the supreme law of the land un¬ 
less expressly and definitely abrogated. (Fellows v. 
Blacksmith et al., 19 How., 366.) 

On March 3, 1871, Congress declared that “no In¬ 
dian nation or tribe within the territory of the United 
States shall be acknowledged or recognized as an inde¬ 
pendent nation, tribe, or power with whom the United 
States may contract by treaty; but no obligation of 
any treaty lawfully made and ratified with any such 
Indian nation or tribe prior to March 3, 1871, shall be 
hereby invalidated or impaired.” (R. S., 2079.) 

Of recent years the Government of the United 
States has governed the Indian tribes by acts of Con¬ 
gress instead of controlling them by treaties, they 
being within the geographical limits of the United 
States and being necessarily subject to the laws which 



























































































































































































9 


Congress may enact for their protection and for the 
protection of the people with whom they come in con¬ 
tact. ( United States v. Kagama et at ., 118U. S., 375.) 

THE RELATION BETWEEN THE UNITED STATES AND THE 
INDIANS IS PECULIAR. 

It is scarcely necessary to invite the attention of 
the courts of the United States, especially those in 
Oklahoma, to the character of the title under which 
the Indian holds and occupies his land. That title 
is and always has been an anomalous one. It is 
without precedent or analogy. While the Indian 
allottee may become invested with the rights, privi¬ 
leges, and immunities of citizenship, he may yet, in 
his property rights, be subject to the control of the 
Government. This has been declared in the statutes 
of the United States (see general allotment act of 
1887 (24 Stats., 388) and by the Supreme Court of 
the United States. (In re Heff, 197 U. S., 488.) 

Mr. Justice Miller said, in United States v. Kagama 
(118 U. S., 375): 

The relation of the Indian tribes living 
within the borders of the United States, both 
before and since the Revolution, to ‘the people 
of the United States has always been an 
anomalous one and of a complex character. 

Following the policy of the European gov¬ 
ernments in the discovery of America towards 
the Indians who were found here, the colonies 
before the Revolution, and the States and the 
United States since, have recognized in the In¬ 
dians a possessory right to the soil over which 
they roamed and hunted and established occa¬ 
sional villages. But they asserted an ultimate 
title in the land itself, by which the Indian 
tribes were forbidden to sell or transfer it to 


10 


other nations or peoples without the consent 
of this paramount authority. When a tribe 
wished to dispose of its land, or any part of it, 
or the State or the United States wished to 
purchase it, a treaty with the tribe was the only 
mode in which this could be done. The United 
States recognized no right in private persons, or 
in other nations, to make such a purchase by 
treaty or otherwise. With the Indians them¬ 
selves these relations are equally difficult to 
define. They were, and always have been, re¬ 
garded as having a semi-independent position 
when they preserved their tribal relations; not 
as States, not as nations, not as possessed of 
the full attributes of sovereignty, but as a sep¬ 
arate people, with the power of regulating their 
internal and social relations, and thus far not 
brought under the laws of the Union or of the 
State within whose limits they resided. 

He also said in the same case, page 383: 

It seems to us that this is within the compe¬ 
tency of Congress. These Indian tribes are 
the wards of the nation. They are communi¬ 
ties dependent on the United States. De¬ 
pendent largely for their daily food. Depend¬ 
ent for their political rights. They owe no 
allegiance to the States, and receive from 
them no protection. Because of the local ill 
feeling, the people of the States where they 
are found are often their deadliest enemies. 
From their very weakness and helplessness, so 
largely due to the course of dealing of the 
Federal Government with them and the treaties 
in which it has been promised, there arises the 
duty of protection, and with it the power. 
This has always been recognized by the Exec¬ 
utive and by Congress, and by this court, 
whenever the question has arisen. 

In the Heff case a citizen Indian was held to have 
been withdrawn from the police power of the Federal 













j§ — m -• --- - . . - . Jgt 


































































































































































11 


Government, but the court states that this citizenship 
does not withdraw him from the power and control of 
the Federal Government in respect of his property 
rights. Thus, while all Indians in the Indian Terri¬ 
tory were made citizens by the general allotment act 
as amended by the act of March 3, 1901 (31 Stat., 
1447), there are restrictions on their title under the 
general allotment act and under the laws and agree¬ 
ments pertaining to the Five Civilized Tribes. 

Attorney-General Miller, on March 12, 1890, ad¬ 
vised the President (19 Op. Attorneys-General, 511), 
as follows: 

Notwithstanding the Indians, by taking 
separate allotments, have made a first and a 
long step toward civilization and independent 
citizenship, yet they are still in a state of pupilage 
and under the guardianship of the General Gov¬ 
ernment. Upon the same ground, I am clear 
that it has not been the intention of Congress, 
in any legislation so far, to put these Indians, 
who take such separate allotments, entirely 
upon their own resources or to withdraw the 
Government’s guardianship, supervision, and 
protection. The fact, if there were no other, 
that their lands so allotted are made inaliena¬ 
ble, that the allottee has no power to cumber 
or charge the same with debt, would be a clear 
indication that Congress had not intended to 
remit him to courts of law for the protection of 
those lands; for it would be worse than idle to ex¬ 
pect that a man so untutored, so improvident, 
so much of a child that he can not be trusted 
with a control over his property would be able, 
without any power to charge that property for 
any purpose, to protect the same in a court of 
law. In other words, I am entirely clear that 
it is the duty of the Goyernment to protect 


12 


these Indian allottees in the enjoyment of their 
allotments. The only question is as to the man¬ 
ner of such protection. I think * * * it 

entirely clear that the statute expressly author¬ 
izes the use of troops for the protection of such 
rights in u the Indian country .” The Supreme 
Court has repeatedly decided that “ Indian 
country” is all country to which the Indian 
title has not been extinguished. The Indian 
title to the lands allotted in these reservations 
under the act of March 2,1889, is modified, but 
I do not think it can be said to be extinguished. 
In pursuance of treaties with the Indians the 
lands are partitioned in severalty to the In¬ 
dians, not because the ordinary Indian title has 
been totally extinguished but because the In¬ 
dians have consented to such arrangement. 
This being so, and in view of the relation of 
guardianship the Government still bears, and 
the duty of protection it still owes to these In¬ 
dians, I have no doubt of the right of the Presi¬ 
dent to use the troops for the protection of 
these allotments. 

Chief Justice Marshall, in the case of Cherokee 
Nation v. Georgia (5 Peters, 1), gives a learned and 
exhaustive treatise on the status of the Indian with 
respect to the Federal Government, as he did also 
in Worcester v. Georgia (6 Peters, 515). These cases 
have been followed and cited throughout all litiga¬ 
tion pertaining to the Indian wherever it was desired 
to emphasize the peculiarity of the relation. 

Quoting from the opinion of Chief Justice Marshall 
in Cherokee Nation v. Georgia , supra , page 17: 

They may, more correctly, perhaps, be 
denominated domestic dependent nations. 
They occupy a territory to which we assert a 
title independent of their will, which must 



























































































































13 


take effect in point of possession, when their 
right of possession, ceases. Meanwhile they 
are in a state of pupilage; their relation to 
the United States resembles that of a ward 
to his guardian. They look to our Govern¬ 
ment for protection; rely upon its kindness 
and its power; appeal to it for relief to their 
wants; and address the President as their 
great father. They and their country are 
considered by foreign nations, as well as by 
ourselves, as being so completely under the 
sovereignty and dominion of the United States, 
that any attempt to acquire their lands, or to 
form a political connection with them, would 
be considered by all as an invasion of our ter¬ 
ritory and an act of hostility. These consid¬ 
erations go far to support the opinion that the 
framers of our Constitution had not the Indian 
tribes in view, when they opened the courts 
of the Union to controversies between a State 
or the citizens thereof and foreign States. 

RESTRICTIONS ON THE POWER TO ALIENATE OR OTHER¬ 
WISE DISPOSE OF INDIAN LANDS ARE VALID. 

Restrictions on the power of individual Indians to 
alienate, lease, or otherwise dispose of their lands 
have been upheld by the Supreme Court of the 
United States. In Smith v. Stevens (10 Wall., 321) 
Mr. Justice Davis uses this language: 

It was considered by Congress to be neces¬ 
sary, in case the reservees should be desirous 
of relinquishing the occupation of their lands, 
that some .method of disposing of them should be 
adopted which would be a safeguard against 
their own improvidence; and the power of Con¬ 
gress to impose a restriction on the right of 
alienation, in order to accomplish this object, 
can not be questioned. Without this power, 


14 


it is easy to see, there would be no way of pre¬ 
venting the Indians from being wronged in 
contracts for the sales of their lands, and the 
history of our country affords abundant proof 
that it is at all times difficult, by the most 
careful legislation, to protect their interests 
against the superior capacity and adroitness 
of their more civilized neighbors. 

In Libby v. Clark (118 U. S., 250) the Supreme 
Court declared void a deed made in violation of a 
treaty of 1862 with the Ottawa Indians (12 Stats., 
1239-1240.) The restriction was that “No Indian, 
except as herein provided, to whom the same (patent) 
may be issued, shall alienate or encumber' the land 
allotted to him or her in any manner until they shall, 
by the terms of this treaty, become a citizen of the 
United States; and any conveyance or encumbrance 
* * * of the lands allotted to him or her, made 

before they shall become a citizen, shall be null and 
void.” It was contended that, as the estate intended 
to be given to the Indian was one in fee simple, there 
could be no restriction on the power of alienation. 
Mr. Justice Miller, at page 255, thus describes the 
title: 

The title conveyed to Hurr by the patent 
was a fee simple; that is, it was all the title or 
interest in the land. . No one shared this title, 
or had any interest in it, and it descended, or 
would have descended, to his heirs. The re¬ 
striction on his right to convey did not deprive 
the title of the character of a fee simple estate. 
“An estate in fee simple is where a man has 
an estate in lands or tenements to him and his 
heirs forever.” (4 Com. Dig., Estates , 1.) 































































































































































































































































































































































































































15 


The limitation of the power of sale for five 
years is not inconsistent with a fee simple 
estate. Such, also, seems to have been the 
practice of the Government in other treaties 
referred to by counsel in their brief. (7 Stat. 
348 et seq.) 

In Taylor v. Brown (147 U. S., 640), an Indian took 
up a homestead under section 15, act of March 3, 1875 
(18 Stat., 402), which granted the right to Indians 
who had abandoned their tribal relations to take up 
a homestead, with the proviso that “ the title to lands 
acquired by any Indian by virtue hereof shall not be 
subject to alienation or encumbrance, either by volun¬ 
tary conveyance or the judgment, decree, or order of 
any court, and shall be and remain inalienable for a 
period of five years from the date of the patent.” 
The precise question in that case was as to the date 
on which the five-year period began to run. The 
court, however, assumed that if a deed were made 
before the expiration of the period it would be void. 
At page 646 it is said: 

The power of free alienation is incident to 
an estate in fee simple, but a condition in a 
grant preventing alienation to a limited extent 
or for a certain and reasonable time may be 
valid, and the grantee forfeit his estate by 
violating it (1 Prest. Est., 477,) and, while 
such a result does not ensue in transactions 
with members of a race of people treated as in 
a state of pupilage and entitled to special pro¬ 
tection, (Pickering v. Lomax , 145 U. S., 310; 
Felix v. Patrick , 145 U. S., 317, 330,) yet the 
proviso in question may fairly be held to have 
been adopted in view of general principles. 


16 


In Beck v. Flournoy Live-Stock & Real-Estate Com¬ 
pany (65 Fed.), at page 35, the court says: 

It is competent for a private donor, by deed 
or other conveyance, to create an estate of that 
character; that is to say, it is competent for a 
private person to make a conveyance of real 
property, and to withhold from the donee, for 
a season, the power to sell or otherwise dispose 
of it. And we can conceive of no sufficient 
reason why the United States, in the exercise 
of its sovereign power, should be denied the 
right to impose similar limitations, especially 
when it is dealing with a dependent race like 
the Indians, who have always been regarded as 
the wards of the Government. 

In Smythe v. Henry (41 Fed., 705), the question was 
whether citizenship granted to the Indian allottee 
removed the restriction on alienation. The two were 
held not to be inconsistent. Restriction on alienation 
was upheld. 

State courts have also consistently upheld the 
validity of such restrictions. In Charles Blue-Jacket 
v. The Commissioners of Johnson County et al (3 Kans., 
299), will be found a very full discussion of the ques¬ 
tion of the Indian title with relation to the taxing 
power, particularly as to those lands which have been 
granted to the Indians with a restriction on the power 
of alienation. That case arose under the treaty with 
the Shawnee Indians of May 10, 1854 (10 Stat., 1053), 
and the restriction was that the land should not be 
sold or conveyed without the consent of the Secretary 
of the Interior. The court, at page 321, said: 































































































































































































































































































































































17 


The interest given, a fee simple taking away 
the power of alienation except, etc., is pre¬ 
cisely what always has been called an “ Indian 
title.” (6 Hill, 546 (Ogden v. Lee ), affirmed, 
5 Den., 628.) The same doctrine is recog¬ 
nized in all the decisions, both State and Fed¬ 
eral. The Government has habitually given 
such titles prescribing the same disabilities; it 
is precisely the title that the European govern¬ 
ment ever since the discovery of America have 
conceded to the natives. It was so with Eng¬ 
land before the Revolution, and it has been so 
ever since, both under the confederation and 
under the Constitution of the United States, 
and has been practiced by the United States, 
giving Indians the same title to their new 
homes which they held to their original or 
native country. 

After reviewing the restrictions on alienation con¬ 
tained in the several treaties, the court, at page 325, 
says: 

It is obvious from the treaty itself that it 
was not the intention of the Government to 
part with the control over these lands except 
in certain cases where the Government might 
deem it for the best interest of the Indian to 
consent to the sale of them or a portion of 
them. Allowing the Indians to make selec¬ 
tions of head rights and giving them patents 
therefor, was done with the view of habitu¬ 
ating the Indians to the idea of individual 
property, and fixing them down to one place 
and destroying their inclination to roam about 
and live a hunter’s life. To secure these 
objects and to carry out this policy it was just 
as necessary for the Government to retain the 
entire control of the property as before the 
treaty. Indeed, without retaining this control 

49238—08-2 


18 


the Government could not carry out this policy 
nor fulfill their treaty obligations with the 
Shawnee tribe of Indians. For these guards 
and restrictions spoken of in the act of 3d of 
March, 1859, are intended for the benefit of 
the Indians, and it is so expressed. 

In Sheldon v. Donohoe (40 Kans., 346), a Chip¬ 
pewa Indian gave a deed to his allotment taken 
under the Chippewa treaty, which provided that 
the land so taken “ shall not be alienated in fee, 
leased, or otherwise disposed of, except to the 
United States or to members of said band of In¬ 
dians” (12 Stat., 1105). The deed was declared 
void. Quoting from the opinion of the court at 
page 349: 

Sheldon (the grantee of the Indian) was 
incapable of taking the title to the land then, 
and has been ever since that time. By the 
paramount Federal law he was prohibited 
from taking the title, and therefore he can not 
indirectly build up one by adverse possession, 
estoppel, or any statute of limitations. 
(Stevens v. Smith , 2 Kans., 243; Stone v. 
Young , 4 Kans., 17; Pennock v. Monroe , 5 
Kans., 578.) Cited in Schrimpscher v. Stock- 
ton, 183 U. S., 290. 

By the constitution and laws of the State of 
New York all contracts for the purchase or sale 
or occupation of land made with any of the tribes 
of Indians within that State without the previous 
consent of the State are illegal and void. It was 
so held in St. Regis Indians v. Dunn (19 Johnson 
(N. Y.), 126). 





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19 


In Ex parte Forbes (1 Dill., 363), the court says: 

In the case of the Kansas Indians (5 Wall., 
737) the United States Supreme Court, in 
speaking of the Shawnees, says: “As long as 
the United States recognizes their tribal char¬ 
acter they are under the protection of treaties 
and the laws of Congress and their property 
is withdrawn from the operation of State laws.” 
There can be no question of the applicability 
of this language to the suit in Wyandotte 
County. The Secretary of the Interior has 
never approved the deeds under which peti¬ 
tioners claim and the deeds are entirely void 
until approved by that officer. Until they are 
so approved the lands of the Shawnees are as 
wholly beyond the jurisdiction of the State 
courts as if it were situated beyond its geo¬ 
graphical limits. 

In Clark v. Akers (16 Kans., 166), which was re¬ 
ferred to and commented upon in Sheldon v. Donohoe 
(supra), the court, at page 171, says: 

We ag^ee with the court below, that “ a deed 
made by an Ottawa Indian at any time prior 
to July 16, 1867, without the consent of the 
Secretary of the Interior, was absolutely void, 
and could not create even an equitable inter¬ 
est in the land in favor of the grantee, even 
though he had paid the purchase money and 
taken actual possession.” Or, as stated in the 
second set of findings: “ A deed made by an 
Ottawa Indian, of land allotted and patented 
to him under the treaty of 1862, conveying 
such land to another Ottawa Indian, at any 
time prior to July 16, 1867, without the con¬ 
sent of the Secretary of the Interior, was ab¬ 
solutely void, and could not create even an 
equitable estate in the lands in favor of the 
grantee, even though he had paid the pur¬ 
chase money.” And therefore we think the 


20 


said deeds “E” and “F” were wholly void. 
They were void, not because of any accident, 
or mistake, or oversight, or irregularity in 
their execution, but they were void because 

OF A WANT OF POWER IN EARLY TO ALIENATE 
OR INCUMBER HIS LAND IN ANY MANNER OR 
FORM EXCEPT WITH THE CONSENT OF THE 

Secretary. 

In McGannon v. Straightlege (32 Kans., 524), the 
treaty with certain Indians (10 Stat., 1082), pro¬ 
vided that no conveyance of allotments should be 
made without the approval of the Secretary of the 
Interior. The allottee executed a deed to the de¬ 
fendant’s grantor without approval. The grantee 
named in this deed and his grantees remained in 
possession for fifteen years. Afterwards a patent 
was issued to the allottee. The allottee’s heir exe¬ 
cuted a deed of conveyance to the plaintiff, which 
was approved by the Secretary. The plaintiff 
brought an action in the nature of ejectment against 
the first grantee. It was held that neither the action 
nor the plaintiff’s title to the land was barred by any 
statute of limitation. Quoting from the opinion at 
page 525: 

It is admitted that the title held by Pa-kan- 
giah was simply an Indian title, and that the 
deed executed by him to Baptiste Peoria was 
utterly null and void. It was void for the 
reason that it was executed without author¬ 
ity, and in violation of the terms of said treaty, 
and Pa-kan-giah had at the time nothing but 
a naked allotment of the land to convey. 





















































































































21 


Other cases in which conveyances to land upon 
which there was a restriction were held to be abso¬ 
lutely void are, 

Farrington v. Wilson, 29 Wis., 383. 

Scoffins v. Grandstaff, 12 Kans., 468. 

In Schrimpscher v. Stockton (183 U. S., 290), a deed 
made by a Wyandotte Indian in violation of the 
restriction was held to be void, and it was further 
held that the statutes of limitation do not run 
against the Indian or his heirs as long as the condi¬ 
tion of incompetency remains. 

But even if this specific question had not been 
judicially determined time and time again, the doc¬ 
trine laid down by the Supreme Court of the United 
States in Irvine v. Marshall et at. (20 How., 558) that 
“all the lands in the Territories, not appropriated 
* * * before they were acquired, are * * * 

the exclusive property of the United States, to be dis¬ 
posed of to such persons, at such times, and in such 
modes, and by such titles, as the Government may 
deem most advantageous ” would apply. And, again, 
in Bagnell v. Broderick (13 Pet., 436), “Congress has 
the sole power to declare the dignity and effect of 
titles emanating from the United States.” 

And in United States v. Holliday (3 Wall., 407), 
Mr. Justice Miller, speaking for the court, says, at 
page 419: 

If they are a tribe of Indians, then, by the 
Constitution of the United States, they are 
placed, for certain purposes, within the con¬ 
trol of the laws of Congress. This control 


22 


extends, as we have already shown, to the sub¬ 
ject of regulating the liquor traffic with them. 
This power residing in Congress, that body 
is necessarily supreme in its exercise. This 
has been too often decided by this court to 
require argument, or even reference to au¬ 
thority. 

Neither the constitution of the State nor 
any act of its legislature, however formal or 
solemn, whatever rights it may confer on 
those Indians or withhold from them, can 
withdraw them from the influence of an act 
of Congress which that body has the con¬ 
stitutional right to pass concerning them. 
Any other doctrine would make the legisla¬ 
tion of the State the supreme law of the land, 
instead of the Constitution of the United 
States, and the laws and treaties made in 
pursuance thereof. 

If authority for this proposition, in its 
application to the Indians, is needed, it may 
be found in the cases of the Cherokee Nation 
v. The State of Georgia , and Worcester v. The 
State of Georgia. 

And such restrictions are not inconsistent with an 
estate in fee simple. 

Libby v. Clark , 118 U. S., 250, supra. 

Pickering v. Lomax, 145 U. S., 310. 

Taylor v. Brown, 147 U. S., 640, supra. 

And this power of the United States to regulate 
the mode of conveyance of lands belonging to the 
United States, or to the Indians, or to both, is free 
and independent of the provisions of any State 
statutes. 

Irvine v. Marshall et at., 61 U. S., 558. 

Bagnell v. Broderick, 38 U. S., 436. 

Mayne v. Veale, 20 Kans., 374. 
















• 











































































































































23 


SUBSEQUENT REMOVAL OF RESTRICTION DOES NOT 

VALIDATE THE VOID INSTRUMENT. 

Nor does the removal of the restriction subse¬ 
quent to the date of the void deed or lease validate 
the same. As authority for this, we have the Su¬ 
preme Court of the United States, Smith v. Stevens , 10 
Wall., 321. Under the act of May 26, 1860 (12 Stat., 
21), the reservees had no authority to sell the lands 
without the assent of the Secretary of the Interior. 
A deed was made by a reservee and subsequently, 
on July 17, 1862, Congress removed the restriction 
(12 Stat., 628), and it was contended that the deed 
was thereby validated. Quoting from the opinion 
of Mr. Justice Davis, at page 326: 

It needs no argument or authority to show 
that the statute, having provided the way in 
w T hich these half-breed lands could be sold, 
by necessary implication, prohibited their sale 
in any other way. The sale in question not 
only contravened the policy and spirit of the 
statute, but violated its positive provisions. 

It appearing, then, that by the treaty and 
law in force at the date of the deed, Victoria 
Smith had no capacity to alienate her land, 
and the authority to sell being vested in the 
Secretary of the Interior, and there being no 
evidence that this officer ever authorized the 
sale, or in any manner consented to it, it fol¬ 
lows that the sale was void, and that the deed 
conveys no title to the purchaser. 

It is hardly necessary to say that a joint 
resolution passed nearly two years after this 
transaction, removing the restriction on aliena¬ 
tion, can not relate back and give validity to a 
conveyance which, when executed, was void, 
nor have we any reason to suppose that Con- 


24 


gress contemplated that any such effect would 
be claimed for its legislation on the subject. 

Smith v. Stevens is distinguishable from Lomax v. 
Pickering (173 U. S., 26), and Lykins v. McGrath 
(184 U. S., 169). In those cases the approval had 
not been given at the time the deed was executed, but 
the deeds subsequently received the necessary ap¬ 
proval and the approval was, of course, held to relate 
to the date of the deeds. 

ALLOTMENT IN SEVERALTY IS MERELY A MODIFICATION 
OF THE INDIAN TITLE. 

The allotments in severalty do not extinguish the 
title under which the reservations exist; at most, 
there is but a modification of it. 

On March 12, 1890, Attorney-General Miller ad¬ 
vised the President (19 Op. Attorneys-General, 511) 
to that effect. At page 512 the Attorney-General 
says: 

The Supreme Court has repeatedly decided 
that “ Indian country” is all country to which 
the Indian title has not been extinguished. 
The Indian title to the lands allotted in these 
reservations under the act of March 2, 1889, 
is modified, but I do not think it can be said 
to be extinguished. In pursuance of treaties 
with the Indians the lands are partitioned in 
severalty to the Indians, not because the ordi¬ 
nary Indian title has been totally extin¬ 
guished, but because the Indians have con¬ 
sented to such arrangement. This being so, 
and in view of the relation of guardianship the 
Government still bears, and the duty of pro¬ 
tection it still owes to these Indians, I have 
no doubt of the right of the President to 
use the troops for the protection of these 
allotments. 






. 










' 






















































































* 

- 






















w 















































































































































































. 












































































































































25 


Until the restriction upon alienation has been re¬ 
moved the United States alone is authorized to deal 
with the members of the tribe in respect to their 
allotted property; and so long as the allotment is 
encumbered by any condition it remains under the 
treaty guarantee to protect and keep the reservation 
for the use of the tribe. (United States v. Mullin , 71 
Fed., 682, supra.) 

THE UNITED STATES HAS THE POWER AS PARENS 
PATRI2E AND IT IS ITS DUTY UNDER THE INDIAN 
TREATIES TO INVOKE THE AID OF COURTS TO SET ASIDE 
DEEDS, MORTGAGES, ETC., TO INDIAN LANDS DECLARED 
VOID BY ITS TREATIES AND LAWS. 

Manifestly, the reason for restraining the alienation 
of the property of Indian allottees is that they are 
likely to be overreached in the business world. 
Hence, they are not permitted to alienate or encumber 
their lands, except under such conditions as Congress 
may impose, until they shall have reached such a state 
of intelligence and experience that their interests may 
be safely intrusted to them. How incongruous would 
it be if they were left to their own disposition to bring 
and maintain suits in the courts with respect to the 
property upon which these restrictions have been 
placed! If the Indian is unfit to negotiate for the 
sale of his property he is unfit to enforce his rights in 
the courts. And until the political department of the 
Government clearly indicates its desire to leave the 
Indian to his own devices its power of protection 
remains. It should be remembered that it is only by 
virtue of the consent of the Government that the 


26 


Indians can ever sell or lease their lands. The title 
flows from the Government and, unless permission to 
lease or sell can be found in its statutes, the power 
does not exist. 

In United States v. Kagama (118 U. S.), at page 
384, Mr. Justice Miller says: 

From their very weakness and helplessness, 
so largely due to the course of dealing of the 
Federal Government with them and the trea¬ 
ties in which it has been promised, there arises 
the duty of protection, and with it the power . 
This has always been recognized by the Ex¬ 
ecutive and by Congress, and by this court, 
whenever the question has arisen * * * 

The power of the General Government over 
these remnants of a race once powerful, now 
weak and diminished in numbers, is necessary 
to their protection, as well as to the safety of 
those among whom they dwell. It must exist 
in that Government, because it never has ex¬ 
isted anywhere else, because the theater of its 
exercise is within the geographical limits of 
the United States, because it has never been 
denied, and because it alone can enforce its 
laws on all the tribes. 

The Kagama case involved the constitutionality 
of the Indian Appropriation Act of March 3, 1885 (23 
Stats., 385), giving jurisdiction to the courts of the 
Territories of certain crimes committed by Indians 
within the Territories and also giving jurisdiction in 
like cases to courts of the United States for the same 
crimes committed on an Indian reservation within a 
State of the Union. The constitutionality of the act 
was upheld. 

































































































































































27 


In Beck v. Flournoy Live-Btock & Real-Estate Com¬ 
pany (65 Fed.), at page 37 it is said: 

The company deliberately took the chances 
of violating the law, in the belief, no doubt, 
that the Government of the United States 
would be powerless to recover possession of the 
demised premises, if possession was actually 
acquired, except by bringing a multitude of 
suits in ejectment. That is the position now 
assumed by the appellee. It asserts with 
great confidence that the Government must be 
treated as a private land owner; that it can 
only recover the possession of the leased lands 
by bringing suits in ejectment. 

It will be observed from this language that the 
lessees of these Indian lands never questioned the 
right of the Federal Government to appear as party 
complainant on behalf of the Indians. 

In United States v. Boyd (68 Fed.), the court, at 
page 579, says: 

All that is decided is that the Government 
of the United States has not yet ceased its 
guardian care over them, (the Indians) nor 
released them from pupilage. The Federal 
courts can, still, in the name of the United 
States, adjudicate their rights. Nor is this 
without precedent. The American seaman, 
born a citizen of the United States, or nat¬ 
uralized as such, has extended over him the 
guardian care of the Government, and is a 
ward of the nation. The statute books abound 
with acts requiring his contracts to be looked 
into by officers appointed for that purpose, and 
every precaution is taken to guard him against 
fraud, oppression, and wrong. (R. S., 4554 
et seq.) 


28 


And on page 580 the court says: 

The case of the Cherokee trust funds (117 
U. S., 288), * * * decides that this East¬ 

ern Band of Cherokee Indians is not a part of 
the Nation of Cherokees with which this Gov¬ 
ernment treats, and that they have no recog¬ 
nized separate political existence; but, at the 
same time, their distinct unity is recognized, 
and the fostering care of the Government over 
them as such distinct unit. This being so, the 
United States have the right in their own 
courts to bring such suits as ma}^ be necessary 
to protect these Indians. 

The foregoing is by Judge Simonton. And Judge 
Dick, in the same case at page 581, after stating that 
the preliminary question presented in the case is 
whether the United States had the power to appear 
as a party plaintiff to rescind a contract procured by 
means of undue influence and fraud, said: 

In the suit before us the United States do 
not claim any right that encroaches upon any 
of the sovereign powers, duties, and obligations 
of this State. They claim no police power 
over the Indians as citizens of the United 
States * * *. They only insist upon the 

right to appear as a plaintiff in a suit in equity 
instituted in their Circuit Court to invoke the 
jurisdiction of such court in behalf of their 
wards, to obtain such relief as may be granted 
upon the well-recognized principles of equity 
jurisprudence. They appear as sovereign 

OF THIS DEPENDENT INDIAN COMMUNITY, AS 
PARENS PATRIAE OF THIS HELPLESS AND IN¬ 
JURED race, not yet invested with the full 
rights of American citizenship, and as guard¬ 
ian, BY TREATY OBLIGATIONS, OF THESE IG¬ 
NORANT AND INJUDICIOUS WARDS, to Control 



























































































































































































































































































































































































29 


their transactions about lands acquired by the 
treaty money. 

After referring to the act of July 27, 1868, which 
transferred the care of the Indians from the Treasury 
Department to that of the Interior, he concludes 
that the Secretary of the Interior and the Commis¬ 
sioner of Indian Affairs, in the exercise of their 
supervisory power, were given, by implication, the 
power to do everything necessary to exercise it, and 
he then says: 

I am of opinion that, wherever a power 
is conferred and a duty imposed by statute, 
everything necessary to accomplish the legis¬ 
lative purpose is given by implication. “A 
thing which is within the intention of the 
makers of the statute is as much within the 
statute* as if it were within the letter.” 
(United States v. Freeman, 3 How., 556.) 

In United States v. Flournoy Live-Stock & Real- 
Estate Company (69 Fed., 890), the suit was brought 
by the United States to cancel leases to lands the 
alienation of which had been forbidden in the grant 
and in the patent, and also to lands which were 
taken up under the general allotment act to which 
the Government retained the legal title in trust for 
the allottee. Quoting from the opinion of Judge 
Shiras, page 890: 

The theory of the bill is that the United 
States is a trustee for the Indians, and holds the 
title of the lands in trust for them, and, by 

FORCE OF THE TREATIES WITH THEM, IS CHARGED 
WITH THE PERFORMANCE OF CERTAIN DUTIES 

towards them, and that there exists a trust 


30 


relation of a high and delicate character, and 
that, for the proper performance of these trust 
duties, it is necessary that the defendants 
should not only be ousted from the possession 
of the leased lands, but that the defendants 
should be restrained, etc. * * * The bill 

seeks the aid of the court, as a court of equity, 
to assist in the proper performance of trust 
duties and obligations, and to protect the 
RIGHTS OF THE INDIANS, etc. 

And, at page 892, he says: 

By the express terms of the treaties made 
with these Indians, the United States assumed 
the duty of preserving the reservations for the 
use, occupancy, and benefit of the Indians, and 
this duty is still incumbent upon it; and it is 
also the fact that the United States still recog¬ 
nizes the continued existence of the Omaha and 
Winnebago tribes. In the absence of direct 
Congressional action on the subject, it is for the 
executive branch of the Government, acting 
through its appropriate channels, to determine 
when a given tribe of Indians, or any portion 
thereof, has so far advanced in civilization, has 
so far abandoned the habits of savage, or semi¬ 
savage life, and has so far adopted the customs, 
laws, and mode of life obtaining among the 
white people, that the United States can 
safely, and in justice to the inhabitants of the 
region wherein they dwell, as well as with 
safety and in justice to the Indians themselves, 
and with due regard to the treaty obligations 
assured to them, terminate all further control 
over such Indians, and leave them to the pro¬ 
tection only of the general laws of the country. 

And again, on page 893: 

It can not be questioned that the power of 
the United States Government over the In¬ 
dian tribes is paramount and supreme. 


















































































































































































31 


(United States v. Kagama , 118 U. S., 375.) If 
the United States, by a treaty duly made with 
an Indian tribe, has assumed a given duty or 
obligation to the Indians, the power exists to 
properly perform this duty within the bound¬ 
aries of the States, as well as within the 
Territories. The power to enforce its laws, 
and the treaties made by it, in pursuance of 
the provisions of the Constitution, is para¬ 
mount and supreme, and rests upon every 
foot of soil within the national boundaries. 
(Ex parte Siebold, 100 U. S., 371; In re Neagle, 
135 U. S., 1; In re Debs , 158 U. S., 564.) 
* * * By the express terms of the treaty 

made with the Indians on the 8th of March, 
1865, the United States solemnly stipulated 
“to set apart for the occupation and future 
home of the Winnebago Indians, forever, all 
that certain tract/’ etc. If the executive 
branch of the Government deems it necessary, 
for the proper performance of this treaty 
stipulation with the Indians, to forbid the 
occupancy of these lands by white men, it has 
the right so to do, especially in view of the 
fact that, in all the legislation touching the 
same, Congress has uniformly prohibited the 
alienation of the lands and has expressly de¬ 
clared that all contracts between the Indians 
and persons not native members of the tribe 
shall be wholly null and void * * *; and 

it is clearly the duty of the United States to 
prevent the alienation of the lands during 
the period named, and to preserve them for 
the use and occupancy of the Indians. 

Judge Shiras concluded that the leases of the allot¬ 
tees were void; that the occupancy of the lands by the 
lessees was wholly inconsistent with the purposes 
for which the lands were set apart and with the object 
of the Government in providing for the allotment 


32 


in severalty; that such occupancy results in antago¬ 
nizing the authority and control of the Government 
over the Indians; and that the United States, through 
the executive branch thereof, has the right to invoke 
the aid of the courts to cancel the leases and to com¬ 
pel the lessees to yield the possession thereof and to 
restrain them from endeavoring to obtain or retain 
such possession. (Page 894.) 

After the demurrer in United States v. Flournoy 
Live-Stock & Real-Estate Company had been over¬ 
ruled the case came on for hearing on bill and answer. 
(United States v. Flournoy Live-Stock & Real-Estate 
Company , 71 Fed., 576.) It will be remembered 
that in this case some of the leases were of lands 
allotted under the Winnebago treaty upon which 
there was a restriction on alienation and as to which 
no permission to lease had been given by Congress, 
while the other allotments were taken up under the 
general allotment act. As before pointed out, the 
court made no distinction between these two classes 
of allotments as to the capacity in which the United 
States appeared as party complainant. The court, 
in a sharp opinion, granted all the relief prayed for 
in the bill. At page 579 Judge Shiras says: 

I further hold that these reservations con¬ 
tinue to be Indian reservations; that the 
United States has never yet been released from 
the treaty stipulations and obligations by 
which it assumed to preserve these lands for 
the use and benefit of the Indians; that the 
United States holds the title of these lands 
charged with the trust created by the treaties 








































































































































































33 


in question, and it is its duty to do whatever 
is necessary to protect the Indians in the proper 
use and occupancy thereof; that the power 
and right in the United States to do whatever 
is necessary for the fulfillment of its treaty 
duties, trusts, and obligations towards the In¬ 
dians rests upon every foot of soil and upon 
every individual within the boundaries of the 
reservations, and this power and right is para¬ 
mount and supreme. 

He further says: 

Nor can there be found any proper authority 
for leasing any portions thereof, (the reserva¬ 
tion) excepting under the control of the Interior 
Department; and as it appears that the leases 
held by the defendants were not taken under 
the rules and regulations of the Department, 
but in total disregard thereof, and as it further 
appears that the defendants held possession, 
not under any right, license, or permission 
granted by the United States, but in defiance 
of the orders, rules, and regulations of the 
Indian Office and of the Interior Department, 
I further hold that the United States has 

THE RIGHT TO INVOKE THE AID OF THE COURT 

to remove the defendants from the possession 
of the lands in the bill described and also to 
restrain them from procuring the execution of 
other leases from the Indian allottees, except in 
the mode provided in the acts of Congress, 
and under the control and supervision of the 
Department of the Interior. 

In United States v. Mullin (71 Fed., 682, supra), it 
was held that the fact that a part of the Indian reser¬ 
vation has been allotted in severalty does not release 
the United States from its obligation to protect the 

49238—08-3 


34 


Indians in the possession and occupancy thereof. 

Beginning page 684 it is said: 

It seems to me clear, beyond question, that 
the duty and obligation rests upon the execu¬ 
tive branch of the Government of the United 
States to protect the Winnebago Indians in 
the possession, use, and occupancy of the reser¬ 
vation set apart for them by the treaty of 
March 8, 1865. The treaty, by express terms, 
imposed this duty upon the United States, 
and the fact that part of the reservation has 
been allotted in severalty to a portion of the 
tribe does not release the United States from 
this treaty obligation. These allotments are 
not yet perfected. The acts of Congress pro¬ 
viding therefor expressly restrict all right of 
alienation, and all right of contract between 
the Indians and the whites, for a period of 
twenty-five years. It can not be known 
whether all or any of the allottees in severalty 
will remain on the lands assigned for the period 
of twenty-five years, and it may be that, by 
abandonment, the allottees may fail to perfect 
an alienable title to the lands allotted them. 
Such failure, however, would not deprive the 
tribe, as a whole, of their right to the reserva¬ 
tion; and it would still be the duty of the 
United States, under the terms of the treaty, 
to protect the tribe in the use and occupancy 
of the reservation. 

And again at the bottom of page 685 it is said * 

A right of occupancy thus acquired by an 
Indian tribe in virtue of treaty stipulations is 
a right that can only be dealt with by the 
United States, as is expressly held in Beecher v. 
Wetherby (95 U. S., 517) and United States v. 
Thomas (151 U. S., 577); and it is not claimed 
that either the executive or legislative branch 
of the Government has, by direct action, in 




































































































































. 










. 


. 

































* 




















































































35 


any way terminated the right of the Winne¬ 
bago Indians to the reservation in question, or 
that by convention with the Indians, or in any 
other mode, the United States has sought to 
relieve itself from the duty it assumed, in the 
treaty of March, 1865, of protecting these 
Indians in the possession of the reservation 
lands. It being true, then, that the Federal 
Government is still charged with this duty, it 
follows that the executive branch of the Gov¬ 
ernment has full power and authority to do 
whatever may be necessary for the proper per¬ 
formance of this duty. 

And again, at page 686, he says: 

From these considerations it follows that 
the National Government, by the terms of the 
treaty entered into with the Winnebago In¬ 
dians, is charged with the obligation of pro¬ 
tecting the Indians in the use and occupancy 
of the reservation lands; that this duty has 
not been terminated by the allotment of the 
lands in severalty; that the executive depart¬ 
ment of the Government is charged with the 
duty to do whatever may be necessary to pro¬ 
tect the Indians in the use and occupancy of 
these lands, and to oust intruders there¬ 
from. 

The Supreme Court of the United States, in the 
Matter of Heff (197 U. S., 488), distinctly upholds 
the right of the Government to enforce and protect 
any condition which it attaches to any of its Indian 
grants. It was contended by the Government in 
that case that a restriction on the alienation of allot¬ 
ted lands withheld the allottee from the police power 
of the State even though the allottee had become a 


36 


citizen of the United States, and upon this point Mr. 
Justice Brewer, at page 508, said: 

But it is said that the Government has pro¬ 
vided that the Indians’ title shall not be alien¬ 
ated or encumbered for twenty-five years, and 
has also stipulated that the grant of citizen¬ 
ship shall not deprive the Indian of his interest 
in tribal or other property, but these are mere 
property rights and do not affect the civil or 
political status of the allottees. In United 
States v. Rickert (188 U. S., 432) we sustained 
the right of the Government to protect the 
lands thus allotted and patented from any 
encumbrance of State taxation. Undoubtedly 
an allottee can enforce his right to an interest 
in the tribal or other property (for that right 
is expressly granted), and equalty clear is it 
that Congress may enforce and protect any 
condition which it attaches to any of its grants. 
This it may do by appropriate proceedings 

IN EITHER A NATIONAL OR A STATE COURT. 

But the fact that property is held subject to 
a condition against alienation does not affect 
the civil or political status of the holder of the 
title. (Cited and affirmed in McKay v. 
Kalyton , 204 U. S., 469.) 

And in United States v. Rickert (188 U. S., 432), 
where the question was raised as to whether the 
United States had such an interest in a suit as to 
restrain the assessment of taxes on lands taken up 
under the act of 1887, the Supreme Court, by Mr. 
Justice Harlan, at page 444, said: 

In view of the relation of the United States 
to the real and personal property in question, 
as well as to these dependent Indians still 
under national control, and in view of the 
injurious effect of the assessment and taxation 










































































37 


complained of upon the plans of the Govern¬ 
ment with reference to the Indians, it is clear 
that the United States is entitled to maintain 
this suit. No argument to establish that prop¬ 
osition is necessary. 

It thus appears that by its treaty obligations to 
protect the Indians in the enjoyment of the reserva¬ 
tion, the allotments in severalty being merely a modi¬ 
fication of the tribal title, the United States has the 
right and it is its duty to keep clear the title to the 
lands as defined by its laws, treaties, and agreements; 
and that it is also its duty so to do under its relation 
as guardian of the Indians. 

THE UNITED STATES HAS CONSTITUTIONAL AUTHORITY 
TO SUE. 

But there is another principle upon which it may 
sue. It is that great attribute of a sovereign govern¬ 
ment, by which it is enabled to discharge its duty, by 
both the exercise of physical force and the peaceable 
method of appeal to its courts in matters especially 
committed to its care and control. It is that power 
which exists independently of any property rights or 
pecuniary interest and which was upheld by the Su¬ 
preme Court of the United States in the famous case 
of In re Debs (158 U. S., 564). No extended state¬ 
ment of the facts in that case is necessary. It will 
be remembered that a general strike by which non¬ 
union men were prevented from doing their work 
threatened to paralyze the entire commerce of the 
country. The United States, realizing its duty and 
power in matters of interstate commerce, appealed to 


38 


the Circuit Court for the Northern District of Illinois 
for an injunction restraining the union men from in¬ 
terfering with the operation of trains carrying inter¬ 
state commerce and the mails. The Circuit Court, 
basing its jurisdiction upon the act of July 2, 1890 
(c. 647, 26 Stat., 209), “An act to protect trade and 
commerce against unlawful restraints and monopolies,” 
sent forth its edict, which all but a few obeyed. Those 
few were held in contempt and sent to jail. Their 
petition for habeas corpus is the case above cited. 
Every jurist and lawyer remembers how the Supreme 
Court, brushing aside the act of 1890, upon which the 
Circuit Court based its jurisdiction, all consideration 
of property rights in the mails and of pecuniary in¬ 
terest, declared the inherent right of the Government 
to invoke the aid of the courts in the discharge of its 
duty respecting interstate commerce and post-offices 
and post-roads, matters especially committed to its 
care and control by the Constitution. 

Upon what Constitutional provisions is the propo¬ 
sition that the United States may bring these suits 
in its own name as sole plaintiff by reason of its at¬ 
tributes as a sovereign government based? They are: 

He (the President) shall have power, by and 
with the advice and consent of the Senate, to 
make treaties, provided two-thirds of the 
Senators present concur. (Constit., Art. II, 
sec. 2, cl. 2.) 

The Congress shall have power to dispose of 
and make all needful rules and regulations re¬ 
specting the Territory or other property be¬ 
longing to the United States, * * * 
(Constit., Art. IV, sec. 3, cl. 2.) 










4 




































































































































































































39 


The Congress shall have power * * * to 

regulate commerce with foreign nations, and 
among the several States, and with the Indian 
tribes. (Constit., Art. I, sec. 8, cl. 3.) 

In making treaties and agreements with the In¬ 
dians, it has seen fit to exercise its power to dispose 
of property belonging to the United States, to wit, 
the public domain; and it is under this power that it 
disposes of public lands generally; hence its power to 
invoke the aid of the courts to rescind patents to land 
obtained in a manner not permitted by its statutes. 
The right of the Attorney-General to prosecute suits 
of that character was upheld in— 

United States v. San Jacinto Tin Co., 125 
U. S., 273. 

United States v. Minor, 114 U. S., 233. 

Moore v. Robbins, 96 U. S„ 530. 

United States v. Hughes, 11 How., 552. 

United States v. Atherton, 102 U. S., 372. 

Moffat v. United States, 112 U. S., 24. 

Multan v. United States , 118 U. S., 271. 

The first-mentioned case was cited and com¬ 
mented upon in the Debs case, which will now be 
analyzed and quoted in part. The opinion is by 
Mr. Justice Brewer and will be found in 158 U. S., 
beginning at page 577. On page 578 he says: 

First. What are the relations of the Gen¬ 
eral Government to interstate commerce and 
the transportation of the mails? They are 
those of direct supervision, control, and man¬ 
agement. While under the dual system which 
prevails with us the powers of government are 
distributed between the State and the Nation, 
and while the latter is properly styled a gov¬ 
ernment of enumerated powers, yet within the 


40 


limits of such enumeration it has all the attri¬ 
butes of sovereignty, and, in the exercise of 
those enumerated powers, acts directly upon 
the citizen, and not through the intermediate 
agency of the State. 

And, after speaking of the sufficiency of the Federal 
Government to discharge the great powers assigned to 
it, he quotes Chief Justice Chase in Lane County v. 
Oregon (7 Wall., 71, 76): 

We hold it to be an incontrovertible prin¬ 
ciple, that the Government of the United 
States may, by means of physical force, exer¬ 
cised through its official agents, execute on* 
every foot of American soil the powers and 
functions that belong to it. This necessarily 
involves the power to command obedience to 
its laws, and hence the power to keep the peace 
to that extent. 

And at page 580 he says: 

Under the power vested in Congress to estab¬ 
lish post offices and post roads. Congress has, 
by a mass of legislation, established the great 
post office system of the country, with all its 
detail of organization, its machinery for the 
transaction of business, defining what shall be 
carried and what not, and the prices of car¬ 
riage, and also prescribing penalties for all 
offenses against it. 

Obviously these powers given to the National 
Government over interstate commerce and in 
respect to the transportation of the mails were 
not dormant and unused. Congress had taken 
hold of these two matters, and by various and 
specific acts had assumed and exercised the 
powers given to it, and was in the full discharge 
of its duty to regulate interstate commerce and 
carry the mails. The validity of such exercise 






















































































































































































































■ 


























. 



































































































41 


and the exclusiveness of its control had been 
again and again presented to this court for 
consideration. 

The learned justice concludes his discussion of the 
right of the Government to exercise physical force on 
page 582 thus: 

The strong arm of the National Government 
may be put forth to brush away all obstruc¬ 
tions to the freedom of interstate commerce 
or the transportation of the mails. If the emer 
gency arises, the Army of the nation, and all its 
militia, are at the service of the nation to 
compel obedience to its laws. 

Passing to the question of the exercise of peaceable 
means, he holds that the same rights exist with refer¬ 
ence to invoking the aid of judicial tribunals for the 
purpose of discharging its duty with respect to inter¬ 
state commerce, arid at page 583 he says: 

So, in the case before us, the right to use 
force does not exclude the right of appeal to 
the courts for a judicial determination and for 
the exercise of all their powers of prevention. 
Indeed, it is more to the praise than to the 
blame of the Government that, instead of 
determining for itself questions of right and 
wrong on the part of these petitioners and their 
associates and enforcing that determination 
by the club of the policeman and the bayonet 
of the soldier, it submitted all those ques¬ 
tions TO THE PEACEFUL DETERMINATION OF 
judicial tribunals, and invoked their con¬ 
sideration and judgment as to the measure of 
its rights and powers and the correlative ob¬ 
ligations of those against whom it made com¬ 
plaint. And it is equally to the credit of the 
latter that the judgment of those tribunals 
was by the great body of them respected, and 


42 


the troubles which threatened so much disas¬ 
ter terminated. 

The learned justice then discusses the question 
whether the United States must have a property or a 
pecuniary interest in order to ask the aid of the courts, 
and, after deciding that the United States unques¬ 
tionably has a property in the mails, his opinion pro¬ 
ceeds, page 584: 

We do not care to place our decision upon 
this ground alone. Every Government, en¬ 
trusted, by the very terms of its being, with 
powers and duties to be exercised and dis¬ 
charged for the general welfare, has a right 
to apply to its own courts for any proper 
assistance in the exercise of the one and the 
discharge of the other, and it is no sufficient 

ANSWER TO ITS APPEAL TO ONE OF THOSE 
COURTS THAT IT HAS NO PECUNIARY INTEREST 

in the matter. The obligations which it is 
under to promote the interest of all, and to 
prevent the wrongdoing of one resulting in 
injury to the general welfare, is often of itself 
sufficient to give it a standing in court. This 
proposition in some of its relations has here¬ 
tofore received the sanction of this court. In 
United States v. San Jacinto Tin Co. (125 U. S., 
273, 285) was presented an application of the 
United States to cancel and annul a patent 
for land on the ground that it was obtained 
by fraud or mistake. The right of the United 
States to maintain such a suit was affirmed, 
though it was held that if the controversy was 
really one only between individuals in respect 
to their claims to property the Government 
ought not to be permitted to interfere. 

The opinion|then cites the case of United States v. 
American Bell Telephone Company (128 U. S., 315), 


















































































































































43 


which was a suit brought by the United States to set 
aside a patent for an invention on the ground that 
it had been obtained by fraud or mistake, and it was 
claimed that the United States, having no pecuniary 
interest in the subject-matter of the suit, could not 
be heard to question the validity of the patent. But 
this contention was overruled, the court quoting 
from the San Jacinto case. Mr. Justice Brewer then 
states at page 586: 

It is obvious from these decisions that while 
it is not the province of the Government to 
interfere in any mere matter of private con¬ 
troversy between individuals, or to use its 
great powers to enforce the rights of one 
against another, yet, whenever the wrongs 
complained of are such as affect the public at 
large, and are in respect of matters which 
by the Constitution are entrusted to the 
care of the nation, and concerning which 
the nation owes the duty to all the citizens of 
securing to them their common rights, then 
the mere fact that the Government has no 
pecuniary interest in the controversy is not 
sufficient to exclude it from the courts, or pre¬ 
vent it from taking measures therein to fully 
discharge those constitutional duties. 

The National Government, given by the 
Constitution power to regulate interstate com¬ 
merce, has by express statute assumed juris¬ 
diction over such commerce when carried upon 
railroads. It is charged, therefore, with the 
duty of keeping those highways of interstate 
commerce free from obstruction, for it has 
always been recognized as one of the powers 
and duties of a Government to remove ob¬ 
structions from the highways under its control. 


44 


And finally the opinion is concluded on page 600 
thus: 

We enter into no examination of the act of 
July 2, 1890 (c. 647, 26 Stat., 209), upon 
which the Circuit Court relied mainly to sus¬ 
tain its jurisdiction. It must not be under¬ 
stood from this that we dissent from the con¬ 
clusions of that court in reference to the scope 
of the act, but simply that we prefer to 

REST OUR JUDGMENT ON THE BROADER GROUND 
WHICH HAS BEEN DISCUSSED IN THIS OPINION, 
BELIEVING IT OF IMPORTANCE THAT THE PRIN¬ 
CIPLES UNDERLYING IT SHOULD BE FULLY 
STATED AND AFFIRMED. 

The Debs case, then, holds that while the United 
States is a government of enumerated powers, it 
has full attributes of sovereignty within the limits 
of those powers; that the powers thus conferred 
are not dormant, but have been assumed and put 
into practical exercise by Congressional legislation; 
that while it may be competent for the Government 
to exercise force to compel obedience to its laws 
passed in pursuance of the powers thus granted, it 
is equally within its competency to appeal to its 
civil courts in order to carry out its policies as de¬ 
clared in those laws; and that no special grant of 
jurisdiction to the courts is required. 

The Supreme Court of the United States has 
declared: 

The power over the public lands is vested 
in Congress by the Constitution without limi¬ 
tation. (United States v. Gratiot et al., 14 Pet., 
526.) 





































































































45 


And again: 

All lands in the Territories, not appro¬ 
priated * * * before they were acquired, 
are * * * the exclusive property of the 
United States, to be disposed of to such per¬ 
sons, at such times, and in such modes, and 
by such titles, as the Government may deem 
advantageous. (Irvine v. Marshall , 20 How., 
558.) 

Congress has the sole power to declare the 
dignity and effect of titles emanating from 
the United States. (.Bagnell v. Broderick , 
13 Pet., 436.) 

In disposing of its lands under homestead, stone 
and timber, coal land, and other laws, Congress has 
specified the conditions under which they may be 
acquired and what persons may acquire them. If 
they are obtained under other conditions or by other 
persons, we have seen that the Government possesses 
the inherent right to set aside the muniments of title 
and to purify the record. In disposing of its lands to 
the Indians it has declared that a qualified title shall 
go to the Indian and that it shall go no further. The 
difference is one of fact only. Who, then, can deny 
the existence of the power with respect to the second 
class of cases'? 

There may be a question as to whether the dispo¬ 
sition of lands to the Indians is under the treaty¬ 
making power or under the power to dispose of terri¬ 
tory and other property. But whether it is under 
one or both is immaterial. The same power exists 
as to both; they are both subjects committed to the 
care and control of the National Government, and 
the same power exists to command obedience to its 


46 


laws and to nullify violations thereof as was declared 
by the Supreme Court in the Debs case with respect 
to interstate commerce, post-offices, and post-roads. 

Moreover, Congress has distinctly recognized the 
right of the United States to bring suits of the char¬ 
acter herein contemplated. By the act of May 27, 
1908, “An act for the removal of restrictions from 
part of the lands of allottees of the Five Civilized 
Tribes, and for other puropses,” it is provided by 
the last paragraph of section 6 as follows: 

Nothing in this act shall be construed as a 
denial of the right of the United States to take 
such steps as may be necessary, including the 
bringing of any suit and the prosecution and 
appeal thereof, to acquire or retain possession 
of restricted Indian lands, or to remove cloud 
therefrom, or clear title to the same, in cases 
where deeds, leases, or contracts of any other 
kind or character whatsoever have been or 
shall be made contrary to law with respect to 
such lands prior to the removal therefrom 
of restrictions upon the alienation thereof; 
such suits to be brought on the recommenda¬ 
tion of the Secretary of the Interior, without 
costs or charges to the allottees, the necessary 
expenses incurred in so doing to be defrayed 
from the money appropriated by this act. 

To summarize, the right of the United States to 
sue in its own name as sole plaintiff may be based 
upon three distinct principles: 

(1) The power to enforce its treaty obligations; 

(2) The relation of guardian which it bears to the 
Indians; and 

(3) The inherent constitutional power as laid down 
in In re Debs. 




















































































































47 


CASES WHICH ESTABLISH THE RIGHT OF THE UNITED 
STATES, BY ITSELF, TO INVOKE THE AID OF THE COURTS 
TO RESCIND ACTS DECLARED VOID BY THE INDIAN 
TREATIES AND LAWS. 

A series of decisions in the United States courts, 
growing out of a scheme on the part of a concern 
known as the Flournoy Live Stock and Real Estate 
Company to acquire immense tracts of land in the 
Winnebago Indian Reservation, has placed beyond 
question the right of the United States to use its mili¬ 
tary power and to invoke the aid of the courts as the 
sovereign power to prevent the possession and occu¬ 
pation of Indian allotments in violation of its laws. 

In order to have a proper understanding of these 
cases it should be understood that some of the allot¬ 
ments to which leases were obtained were made on 
May 26, 1871, under the fourth section of the act of 
February 21, 1863 (12 Stat., 658), and the treaty of 
March 8, 1865. The act of February 21, 1863, author¬ 
ized the President of the United States “to assign to 
and set apart for the Winnebago Indians a tract of 
unoccupied land beyond the limits of any State,” 
and to remove the Indians from Minnesota “and to 
settle them upon the lands which may be assigned to 
them” under the provisions of the act. It provided 
for allotments in severalty of lands “which lands, 
when so allotted, shall be vested in said Indian and 
his heirs, without the right of alienation , and shall be 
evidenced by patent.” The act further provided, 
section 5, that said Indians “shall be deemed inca¬ 
pable of making any valid civil contract with any per- 


48 


son other than a native member of their tribe with¬ 
out the consent of the President of the United States.” 

Others of the allotments were made under the gen¬ 
eral allotment act of February 8, 1887 (24 Stat., 388), 
section 5 of which provides: 

That upon the approval of the allotments 
provided for in this act by the Secretary of 
the Interior, he shall cause patents to issue 
therefor in the name of the allottees, which 
patents shall be of the legal effect, and declare 
that the United States does and will hold the 
land thus allotted, for the period of twenty- 
five years, in trust for the sole use and benefit 
of the Indian to whom such allotment shall 
have been made, or, in case of his decease, of 
his heirs according to the laws of the State or 
Territory where such land is located, and that 
at the expiration of said period the United 
States will convey the same by patent to said 
Indian, or his heirs as aforesaid, in fee, dis¬ 
charged of said trust and free of all charge or 
incumbrance whatsoever; provided, that the 
President of the United States may in any case 
in his discretion extend the period. And if 
any conveyance shall be made of the lands set 
apart and allotted as herein provided, or any 
contract made touching the same, before the 
expiration of the time above mentioned, such 
conveyance or contract shall be absolutely 
null and void. 

The general allotment act was amended February 
28, 1891 (26 Stat., 794), and provided for the leasing 
of Indian lands, both allotted and tribal, under the 
conditions specified in paragraph 3 of the act, which 
is as follows: 

That whenever it shall be made to appear to 
the Secretary of the Interior that , by reason of 





































































































































































































































































































































49 


age or other disability, any allottee under the 
provisions of said act, or any other act or treaty 
can not personally and with benefit to himself 
occupy or improve his allotment or any part 
thereof the same may be leased upon such 
terms, regulations, and conditions as shall.be 
prescribed by such Secretary, for a term not ex¬ 
ceeding three years for farming or grazing, or 
ten years for mining purposes; provided, that 
where lands are occupied by Indians who have 
bought and paid for the same, and which lands 
are not needed for farming or agricultural pur¬ 
poses, and are not desired for individual allot¬ 
ments, the same may be leased by authority 
of the council speaking for such Indians, for a 
period not to exceed five years for grazing, or 
ten years for mining purposes in such quanti¬ 
ties and upon such terms and conditions as the 
agent in charge of such reservation may recom¬ 
mend, subject to the approval of the Secretary 
of the Interior. 

It will thus be seen that in the case of the allot¬ 
ments held under the act of 1863 there was an abso¬ 
lute restriction on alienation, and the Indians were 
to be incapable of making any valid civil contract 
without the consent of the President. And under 
the general allotment act the United States was to 
hold the land in trust for the Indians for twenty-five 
years, and any conveyance of the land or any con¬ 
tract touching the same should be absolutely null and 
void. These restrictions were modified under the 
amendment of 1891 to the extent indicated in para¬ 
graph 3, but only when the conditions under which 
the lands might be leased were made to appear to the 
Secretary of the Interior and the contract or lease 
received his approval. 

49238—08-4 


50 


The Flournoy company obtained leases to lands 
allotted, both under the act of 1871 and the act of 1887, 
to the extent of 37,000 acres, which contracts and 
leases were never submitted to the Secretary of the 
Interior for his approval. In point of fact, there was 
no attempt to secure the leases within the limitations 
in the amendment of 1891. The company secured 
leases and contracts from every Indian it could reach. 

It is an important fact that throughout the entire 
litigation the courts, in considering the rights of the 
United States in the premises, made no distinction 
between lands taken under the act of 1871, wherein 
there was a grant with a restriction on alienation, and 
the act of 1887, wherein the legal title was retained 
by the United States in trust for the allottees. 

BECK v. FLOURNOY LIVE-STOCK & REAL-ESTATE COMPANY, 
65 FED., 30: 

In this case the Flournoy Company sought to 
enjoin Beck, an army officer and acting Indian 
agent, from interfering with the complainant’s pos¬ 
session of the lands to which it had obtained leases. 
Beck had been directed by the Commissioner of Indian 
Affairs to cause notices to be served upon the com¬ 
pany and upon all other persons holding leases for 
land within the reservation that the leases were 
void and would not be recognized by the Depart¬ 
ment of the Interior and that the leased premises 
must be vacated by a certain time. Beck was pro¬ 
ceeding to execute this order and to serve such 
notices when the bill was filed. 








' 














• • 

















* 

































♦ 










































































































































































































V 





































• r . /■“ 1 






























































































































































51 


The case at nisi prius is not reported. However, 
the defendant was enjoined and took the case to 
the Circuit Court of Appeals for the Eighth Circuit, 
and the decision of the Circuit Court of Appeals is 
found as above cited. That court reversed the 
trial court in an opinion rendered by Judge Thayer, 
in which he held: 

(1) That the citizenship bestowed on the Indians 
was in no way inconsistent with the restriction 
upon their title to their lands and that the leases 
obtained by the Flournoy Company were utterly 
void; 

(2) That the injunction granted by the trial court 
was erroneous; and 

(3) That, as the Flournoy Company had evidently 
embarked upon the business of securing the leases 
with knowledge of their illegality, and in reliance 
upon the difficulties the Government would meet in 
getting rid of them, a court of equity would not 
interfere, at the instance of such wrongdoer, to re¬ 
strain any action the Government might take to 
vindicate its rights, but would leave it to seek 
damages at law for whatever injury it might sustain. 

UNITED STATES v. FLOURNOY LIVE-STOCK & REAL-ESTATE 
COMPANY, 69 FED., 886: 

This was the next case. The United States filed 
its bill against the Flournoy Company to recover 
the possession of lands upon which the defendants 
had entered, to restrain them from entering upon 
other lands and from further contracting with the 
Indians about their lands. It named as defendants 


52 


the Flournoy Company and all persons holding sub¬ 
leases under it and other persons who had obtained 
similar leases from Indian allottees to the number 
of 231. There was a demurrer to the bill upon the 
following grounds: 

(1) That the plaintiff had a full and adequate 
remedy at law; 

(2) That the bill was multifarious in that it was 
exhibited against a number of defendants for several 
and distinct and independent matters; and 

(3) That the allegations of the bill did not show 
the plaintiff entitled to the relief sought. 

The court held: 

(1) That the leases were void, citing Beck v. Real- 
Estate Company (65 Fed., 30); 

(2) That equity has jurisdiction of a suit brought 
by the United States against persons who have ille¬ 
gally secured leases of Indian lands and taken posses¬ 
sion thereof and to restrain such persons from induc¬ 
ing the Indians to make further leases and from in¬ 
terfering with the Indian agent in the performance 
of his duties, since the remedy by action in eject¬ 
ment would be inadequate; and 

(3) That the bill is not multifarious although ex¬ 
hibited against persons holding under leases from 
different lessors and having no common interest in 
the suit, since the United States have one common 
interest touching the matter of the bill arising out 
of the trust relation existing between them and the 
Indians in regard to the lands. 




* 








































































































































































































































































































































































































































53 

PILGRIM ET AL. v. BECK ET AL. (69 FED., 895). 

This was a suit similar to that of Beck v. Flournoy 
Company (supra) . The complainants were sublessees 
of the Flournoy Company and sought to enjoin Beck 
in the manner in which the company had previously 
attempted. The court, through Judge Shiras, de¬ 
nied the relief asked, holding the leases absolutely 
void, and further holding that neither such leases nor 
occupancy and planting of crops upon the lands 
gave the occupants any right to restrain the officers 
of the Government from removing them from such 
lands, following the prior cases. 

UNITED STATES v. FLOURNOY LIVE-STOCK & REAL-ESTATE 
COMPANY (71 FED., 576, supra). 

This is the case hereinbefore cited, which was heard 
on demurrer to the bill and which demurrer was over¬ 
ruled. The case then came before Judge Shiras on 
the merits and is reported as above. This case dis¬ 
tinctly upholds the right for which the Government 
contends. Judge Shiras held: 

(1) That the citizenship of the Indians does not 
render null and void as to them or as to the remaining 
members of their tribes restrictions upon alienation of 
their lands contained in the acts of Congress, nor ter¬ 
minate the right and duty of the United States to pre¬ 
serve the reservation lands for the use and benefit of 
the Indians, following Beck v. Real-Estate Company , 
65 Fed., 30; United States v. Real-Estate Company , 69 
Fed., 886; and Pilgrim v. Beck , 69 Fed., 895. 


54 


(2) That lapse of time in the allotment of their 
reservations in severalty does not terminate the tribal 
relations of Indians nor remove them from the super¬ 
vision and control of the Interior Department of the 
Government; 

(3) That the Government has the right to invoke 
the aid of the court to remove from the lands of 
Indians under its supervision and control persons who 
have intruded thereon under unauthorized leases from 
the Indians and to restrain such persons from securing 
such leases from them; and 

(4) That the court had jurisdiction of the suit 
without regard to the amount in controversy because 
the United States was the complainant. 

Other cases in which the United States has sued in 
its own name and upon its own initiative for the pur¬ 
pose of enforcing and commanding obedience to its 
laws respecting Indian property are: 

UNITED STATES v. PAINE LUMBER COMPANY (206 U. S., 467). 

In that case the United States sued the purchaser 
of timber cut and sold by Indian allottees on the 
Stockbridge and Munsee Indian Reservation. The 
land was inalienable and the Government sued to 
recover the price of the timber. The courts held that 
the Indians had the legal right to cut and sell the 
timber for the support of themselves and their 
families, but the right of the United States to bring 
the suit was not questioned either in the trial court or 
in the Supreme Court of the United States. 






















































































































































































































































































































































































55 

UNITED STATES ET AL. y. BOYD ET AL. (68 FED., 577). 

This case shows clearly the peculiar relation be¬ 
tween the United States and the Indians because the 
Indians involved in that case, the Eastern Band of 
Cherokees in the State of North Carolina, did not 
obtain the lands on which they reside from the United 
States; they were bought by the band itself from 
private holders in North Carolina. A contract was 
made by the Indian council with the defendants for 
the sale of timber on these lands owned and occupied 
by the Indians. The United States appeared as com¬ 
plainant, the bill asserting the paramount authority 
and guardianship of the United States over the Eastern 
Band of Cherokee Indians. It is true that there also 
appeared as complainants several Cherokee Indians, 
suing in their own behalf, etc., but the jurisdiction of 
the Federal court was assailed on the ground that the 
United States was not a proper party. Judges Dick 
and Simonton both filed opinions upholding the right 
of the Government to bring suits on behalf of the 
Indians with respect to their property rights when¬ 
ever it saw fit to do so. Indeed, many years before 
serious complications grew out of the purchase of 
these lands by these Indians, and the Congress of the 
United States, by a provision in the act of July 15, 
1870 (16 Stats., 362), made it the duty of the district 
attorney and the Attorney-General of the United 
States to institute and prosecute suits at law or in 
equity in the district or circuit courts of the United 
States for adjusting all matters in controversy. Here 
was a case where the United States appeared by 


56 


reason of its paramount authority over and its duty 
as sovereign of a weak and helpless race in respect to 
property in relation to which there had never been 
any negotiation between it and the Indian tribe. It 
is true that those Indians had not, at that time, 
become citizens of the United States, but, as will be 
hereinafter shown, the Government is not relieved of 
this authority and duty by reason of citizenship on 
the part of the Indians. 

UNITED STATES v. MULLIN, (71 FED., 682). 

This was an indictment against John H. Mullin, 
under section 5398, Revised Statutes, for unlawfully 
resisting service of a legal writ. Captain Beck, 
acting Indian agent of the Winnebago Reserva¬ 
tion, had ordered an Indian policeman to remove 
George Manning from an allotment, and Mullin 
attempted to obstruct and resist the officer in the 
service of the writ placed in his hands by Captain 
Beck. Judge Shiras, in that case, held: 

(1) That the Government is not relieved from its 
duties of guardianship and protection of the members 
of an Indian tribe assumed by treaty with such tribe 
in consequence of the Indians becoming citizens of the 
United States; and 

(2) That the Federal Government is charged with 
the duty of protecting the Indians in the use and oc¬ 
cupancy of the reservation lands whether allotted in 
severalty or not. 





















































































































































57 


IN RE CELESTINE (114 FED., 551). 

This was a petition for habeas corpus by Mrs. 
Josie Celestine and Doctor Buchanan, United 
States Indian agent in charge of the Tullalip Res¬ 
ervation, for the purpose of inquiring into the cause 
of the detention of Annie George, an infant child 
of Mrs. Celestine, who was an Indian woman. 
Judge Hanford held that the Federal court had 
no jurisdiction merely because an Indian who was 
a ward of the Government was a party, and that his 
personal rights were involved; that there is no statute 
authorizing an Indian agent to sue for the benefit or 
protection of the Indians under his charge; and that 
an Indian who became a citizen under the act of Feb¬ 
ruary 8, 1887, has the right to sue in his own name in 
suits involving his personal or domestic rights. But 
the court expressly upheld the right of the United 
States to appear as a party to sue, even in a case of 
the character of the one before him. After stating 
that the Indian agent had no authority in law to sue, 
the court said, page 552: 

On the contrary, it has been decided in 
several cases that it is the right and duty of 
the Government itself to maintain such suits 
as may be necessary for the protection of the 
rights of the Indians. 

UNITED STATES ET AL. y. WINANS ET AL. (73 FED., 72). 

In this case the United States, together with 
certain Indian plaintiffs, brought suit for an injunc¬ 
tion to restrain the defendants from interfering with 
fishery rights of the Yakima Indians. Here it was 


58 


decided that the United States has the right, as 
guardian and trustee of a tribe of Indians, to bring 
a suit to protect the rights secured by their treaty. 

UNITED STATES v. RICKERT (188 U. S. 432). 

This was a suit brought by the United States to re¬ 
strain the collection of taxes alleged to be due Robert 
County, S. Dak., on lands taken up under the general 
allotment act. It was there held that the United States 
had such an interest in the matter as to entitle it to 
maintain the suit. Quoting from the opinion of the 
court, which was by Mr. Justice Harlan, at page 437: 

If, as is undoubtedly the case, these lands 
are held by the United States in execution of 
its plans relating to the Indians—without any 
right in the Indians to make contracts in refer¬ 
ence to them or to do more than to occupy and 
cultivate them—until a regular patent convey¬ 
ing the fee was issued to the several allottees, 
it would follow that there was no power in the 
State of South Dakota, for State or municipal 
purposes, to assess and tax the lands in ques¬ 
tion until at least the fee was conveyed to the 
Indians. These Indians are yet wards of the 
nation, in a condition of pupilage or depend¬ 
ency, and have not been discharged from that 
condition. They occupy these lands with the 
consent and authority of the United States; 
and the holding of them by the United States 
under the act of 1887, and the agreement of 
1889, ratified by the act of 1891, is part of the 
national policy by which the Indians are to be 
maintained as well as prepared for assuming 
the habits of civilized life, and ultimately the 
privileges of citizenship. To tax these lands 
is to tax an instrumentality employed by the 
United States for the benefit and control of 






































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59 


this dependent race, and to accomplish benefi¬ 
cent objects with reference to a race of which 
this court has said that “from their very weak¬ 
ness and helplessness, so largely due to the 
course of dealing of the Federal Government 
with them and the treaties in which it has been 
promised, there arises the duty of protection, 
and with it the power. This has always been 
recognized by the Executive and by Congress, 
and by this court, whenever the question has 
arisen.” (United States v. Kaqama, 118 U. S., 
375, 384.) 

UNITED STATES v. SAUNDERS ET AL., 96 FED., 268. 

This was a suit brought by the United States 
against the defendants to annul a deed given by an 
Indian of the Coeur d’Alene tribe to Saunders, pur¬ 
porting to convey title to the grantor’s homestead. 
The suit was brought upon the theory that the act of 
January 18, 1881 (21 Stat., 315), relating to home¬ 
steads acquired by Indians, applied to Indians gen¬ 
erally. The court held that the act of January 18, 
1881, applies only to the Winnebago Indians. But 
the right of the United States to sue by itself to annul 
the deed was upheld. It is true that the court ob¬ 
served that the bill was styled a “bill to quiet title 
to lands,” and the court questioned the right to sue 
to remove a cloud on the title to property of which 
the defendant was in possession; but it upheld the 
right of the United States to sue to have the deed 
surrendered for cancellation. The distinction made 
between the forms of relief will be hereinafter com¬ 
mented upon in the discussion of the requisites for 
removal of cloud from the Indian title. 


60 


CITIZENSHIP OF THE ALLOTTEE DOES NOT PRECLUDE 
THE UNITED STATES FROM EXERCISING ITS POWER OF 
PROTECTION NOR AFFECT RESTRICTIONS ON THE 
INDIAN TITLE. 

By the act of February 8, 1887 (24 Stat., 388, sec. 
6), it is provided: 

And every Indian born within the terri¬ 
torial limits of the United States to whom 
allotments shall have been made under the 
provisions of this act, or under any law or 
treaty, and every Indian born within the ter¬ 
ritorial limits of the United States who has 
voluntarily taken up, within said limits, his 
residence separate and apart from any tribe of 
Indians therein, and has adopted the habits 
of civilized life, is hereby declared to be a 
citizen of the United States, and is entitled to 
all the rights, privileges, and immunities of 
such citizens, whether such Indian has been 
or not, by birth or otherwise, a member of any 
tribe.of Indians within the territorial limits of 
the United States without in any manner im¬ 
pairing or otherwise affecting the right of any 
such Indian to tribal or other property. 

And by the act of March 3, 1901 (31 Stat., 1447), 
this act was amended by inserting after the words 
“civilized life” the words “and every Indian in In¬ 
dian Territory.” 

In United States v. Mullin (71 Fed., 682) it was 
contended that as the general allotment act of 1887 
conferred citizenship upon the allottees, the Govern¬ 
ment was relieved from all protection of the allotted 
property. Quoting from the court’s opinion: 

Much stress was laid in the argument upon 
the fact that, under the acts of Congress pro- 





















































































































































































































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61 


viding for the allotment of lands in severalty, 
the allottees become, and are declared to be, 
citizens of the United States; it being as¬ 
sumed that, so soon as the Indian becomes a 
citizen of the United States, the Government 
is relieved from all treaty obligations to him. 
The conclusion is not derivable from the 
premise. Certainly, the Government is as 
much obliged, to its own citizens, to perform 
its duties and obligations, as it is to those who 
are not citizens. The question is, Does the 
duty exist? If so, it should be performed, to 
citizen or noncitizen, alike. It not unfre- 
quently happens that, in cases of the acqui¬ 
sition of territory by conquest or purchase, 
the Government binds itself to confer citizen¬ 
ship upon the inhabitants of the acquired ter¬ 
ritory, and also to recognize and protect the 
title held by them; and it has never been held 
that the acquisition of the status of citizen¬ 
ship deprives the individual of his right to 
insist that the treaty obligation, providing for 
the recognition and protection of the title to 
property, should be observed and fulfilled. 
For illustration, suppose an act declaring that 
all Indians within the State of Nebraska 
should henceforth be citizens of the United 
States; would such enactment, and the con¬ 
sequent acquisition of citizenship by the Indi¬ 
ans, terminate all treaty obligations on part of 
the United States to them, and thereby relieve 
the United States from the duty of protecting 
the Indian in the use and occupancy of the 
lands reserved and set apart for him? The 
United States would still hold the title of the 
lands in trust for the Indians, and the con¬ 
ditions of the trust would not be changed by 
the fact that the Indian had become a citizen. 
It must therefore be true that the United 
States, notwithstanding the fact that portions 


62 


of the Winnebago Reservation have been 
allotted in severalty to a portion of the tribe, 
or if it were true that the entire reservation 
had been allotted in severalty, is yet bound, 
by its treaty stipulation, to protect the Indi¬ 
ans, whether citizens or wards of the nation, 
in the use and occupancy of the reservation 
lands which have never yet been opened to 
occupancy by the whites. 

In United States v. Flournoy Live-Stock & Real- 
Estate Company (71 Fed., 576), the same contention 
was made, but the court held that the grant of citi¬ 
zenship did not discontinue the right and duty of the 
Government to rescind leases forbidden by its stat¬ 
utes (p. 578-579). 

Since the amendment of 1901, granting citizenship 
to Indians in the Indian Territory, the Supreme Court 
of the United States has recognized the guardianship 
of all Indians in the Territory. 

Cherokee Nation v. Hitchcock, 187 U. S., 308. 

Lone Wolf v. Hitchcock, 187 U. S., 567. 

United States v. Rickert, 188 U. S., 432. 

Farrell v. United States, 110 Fed., 942. 

In Cherokee Nation v. Hitchcock (supra), the nation 
sought to enjoin the Secretary of the Interior from 
leasing oil lands under the act of June 20, 1898. The 
question was whether this was a valid exercise of the 
power vested in Congress with respect to the Indian 
tribes. The decision was in 1902. Mr. Justice White 
declared the Indians were still subject to the control 
of the Government in their property matters. At 
page 307 it is said: 

There is no question involved in this case as 
to the taking of property; the authority which 





































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' • 






































































































































































































































63 


it is proposed to exercise, by virtue of the act 
of 1898, has relation merely to the control and 
development of the tribal property, which still 
remains subject to the administrative control 
of the Government, even though the members 
of the tribe have been invested with the status 
of citizenship under recent legislation. 

In Lone Wolf v. Hitchcock (supra) Mr. Justice 
White quoted from the Kagama case, in which 
it was held that the Indians were wards of the 
nation, and reaffirmed the doctrines therein laid 
down. 

In United States v. Rickert (supra), which was 
decided in 1903 and which involved the taxation 
of allotments taken up under the general allotment 
act, the court, at page 437, by Mr. Justice Harlan, 
declared that the Indians are yet wards of the 
nation. It should be borne in mind that the Su¬ 
preme Court in deciding these cases had before it 
the general allotment act of 1887, in which all 
Indians who took up lands thereunder were spe¬ 
cifically declared to be citizens of the United States. 

Nor does the grant of citizenship affect in any 
manner the inhibition against leasing or selling. 
In Smythe v. Henry (41 Fed., 705) citizenship 
had been conferred upon Junaluska, a Cherokee 
chief. A grant of land was also made to him in 
fee without power of alienation. In an action to 
cancel the deed made by Junaluska and to quiet 
the title it was contended that the restriction on 
alienation was inconsistent with the grant of citi- 


64 


zenship, but the contention was overruled by the 
court. 

In United States v. Boyd et al. (68 Fed.), at page 
583, Smythe v. Henry was approved and followed, 
as was Eells v. Ross (64 Fed., 417). In the latter 
case it was held that the citizenship granted by 
the general allotment act had no effect upon the 
restriction on the alienation of lands by allottees 
under the treaty with the Puyallup Indians. In 
that case Circuit Judge McKenna, speaking for the 
Circuit Court of Appeals, said, page 420: 

The act of 1887, which .confers citizenship, 
clearly does not emancipate the Indians from 
all control, or abolish the reservations. 

And, after discussing the power of the Government 
to impose restraints on alienation, the court said, 
page 420: 

From its relations to the title, and from the 
terms of the treaty, we think the Government 
had the power to make such conditions, and 
that they were not destroyed by making the 
Indians citizens. Such effect can not be 
deduced from the act of 1887, for, if Congress 
could do so, Congress did explicitly clog the 
title with a condition of nonalienation for 
25 years, and absolutely nullified all contracts 
made, touching the same, before the expira¬ 
tion of such time. 

And the court cited Smythe v. Henry with approval. 
The court also cited In re Coombs (127 Mass., 278), 
wherein it was held that it was competent for the 
legislature to continue the guardianship of Indians 
by the State after they had been made citizens. 










































































































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65 


In United States v. Flournoy Company (69 Fed., 
886), the court, at page 891, says: 

The argument in support of the demurrer, 
in effect, goes upon the theory that citizen- 
sh p of the allottee is inconsistent with any 
restraint upon the right of alienation of the 
lands allotted in severalty. The error of this 
assumption is clearly shown in the opinion 
of the court of appeals in the case of Real- 
Estate Co. v. Beck, already cited. The instances 
in which the United States has conferred an 
interest in lands upon citizens, but subject 
to a restraint upon alienation, are numerous, 
and it has never been held that a restriction 
upon the right of alienation is so inconsistent 
with citizenship that the two can not coexist. 
The right to alienate lands is denied to 
minors, and yet, during their minority, they 
may be citizens of the United States, with 
all the privileges and rights conferred thereby. 
It is to be expected that in the effort to 
advance the Indian from his semisavage 
condition, and to change his tribal condition 
into individual citizenship, many anomalous 
situations will arise, which must be viewed in 
the light of all the legislation upon the same 
subject, including the treaties made with the 
several tribes. 

In that case it was further urged that as under 
the laws of the State of Nebraska Indians to whom 
allotments had been made had the right to vote 
and hold office, the Government of the United States 
no longer owes them any duty of protection. But 
the court said that in the act of 1887, by which the 
Indians were made citizens, it finds the express 
exception that such citizenship shall exist without 

49238—08-5 


66 


IN ANY MANNER IMPAIRING OR OTHERWISE AFFECT¬ 
ING THE RIGHT OF ANY SUCH INDIANS TO THE TRIBAL 
OR OTHER PROPERTY. 

And in United States v. Flournoy Company (71 
Fed., 576) it was contended that the citizenship 
granted by the act of 1887 removed all restrictions 
upon the right of alienation contained in the acts 
of Congress under which the allotments were made. 
At page 578 the court said: 

Thus it appears that the questions which 
are decisive of the case now before the court 
are questions of law, the pivotal point being 
whether conferring citizenship upon the In¬ 
dian allottees freed the lands allotted to them 
from the restrictions contained in the acts 
of Congress upon the right of alienation, and 
terminated all right of control on part of the 
United States over the reservations, the lands 
therein, and the Indians occupying the same. 
Nothing has been adduced by way of argu¬ 
ment or authority which leads me to conclude 
that the views expressed in the opinion ren¬ 
dered upon the demurrer to the bill in this 
case and in the case of Pilgrim v. Beck (69 Fed., 
895) are erroneous, and I shall not attempt 
to enlarge the argument therein contained, 
or to repeat the substance thereof at the pres¬ 
ent time. Relying upon these opinions and 
that of the Circuit Court of Appeals for this 
circuit in the case of Beck v. Real-Estate Co. 
(12 C. C. A., 497; 65 Fed., 30), I hold that 

THE FACT THAT THE INDIAN ALLOTTEES ARE 
DECLARED TO BE CITIZENS OF THE UNITED 

States does not render null and void 

AS TO THEM, OR AS TO THE REMAINING POR¬ 
TION of the Omaha and Winnebago tribes, 

THE RESTRICTIONS UPON THE RIGHT OF ALIEN- 























































































































































67 


ATION CONTAINED IN THE SEVERAL ACTS OF 

Congress under which allotments in sev¬ 
eralty HAVE BEEN MADE OF PORTIONS OF 
THESE reservations; AND IT THEREFORE FOL¬ 
LOWS, AND MUST BE SO HELD, THAT THE SEV¬ 
ERAL LEASES UNDER WHICH THE DEFENDANTS 
CLAIM TITLE AND RIGHT OF POSSESSION ARE 
WHOLLY VOID. 

In Taylor v. Brown (147 U. S., 640) the restriction 
on alienation was enforced against conveyances made 
by a Sioux Indian who had abandoned his tribal rela¬ 
tions and taken the oath of allegiance to the United 
States and had entered a homestead under the law. 

Even if, by the common law, citizenship and re¬ 
striction on the alienation of property were incon¬ 
sistent (which is not the case), if it clearly appeared 
from an act of Congress that both citizenship and re¬ 
striction were to exist, the courts would be bound to 
give effect to such intention. The general allotment 
act grants citizenship and at the same time provides 
for a restriction on alienation. And, even if they were 
inconsistent, which should prevail? It would be going 
far indeed to say that the amendment contained in the 
act of March 3, 1901, by which all Indians in Indian 
Territory were made citizens, was intended to repeal 
every provision of law by which Indians in the Ter¬ 
ritory are declared to be incapable of selling and leas¬ 
ing their lands. Such a claim is too far beyond reason 
to be entertained. This point seems to be entirely 
without merit. 


68 


THE CONTINUANCE OF THE PROTECTION AND POWER OF 

THE UNITED STATES IS A POLITICAL QUESTION AND 

THE COURTS ARE ROUND BY THE ATTITUDE OF CON- 
|- GRESS. 

If it be asked how long this power in the Govern¬ 
ment is to continue, the answer is, just so long as 
the political department of the Government so in¬ 
dicates. That the relations between the Govern¬ 
ment and the Indians are purely a political ques¬ 
tion has always been held. ( United States v. Holli¬ 
day, 3 Wall., 407.) And the attitude of the politi¬ 
cal department as to questions properly within its 
functions is controlling on the courts. ( Mississippi 
v. Johnson, 71 U. S., 475.) 

In that case Mr. Chief Justice Chase said: 

The Congress is the legislative department 
of the Government; the President is the exe¬ 
cutive department. Neither can be restrained 
in its action by the judicial department. 

See also Georgia v. Stanton (6 Wall., 50). 

The courts are bound by the attitude of Congress 
relating to all political questions. ( United States 
v. Lynde, 11 Wall., 632.) 

In Worcester v. Georgia (6 Peters, 350), bottom 
paging, Mr. Justice McLean, at page 400, said: 

It will scarcely be doubted by any one, that, 
so far as the Indians, as distinct communities, 
have formed a connection with the Federal 
Government, by treaties; that such connec¬ 
tion is political * * * So long as treaties 
and laws remain in full force, and apply to 
Indian nations, exercising the right of self 
government, within the limits of a State, the 




































































































































































































































































































69 


judicial power can exercise no discretion in 
refusing to give effect to those laws, when 
questions arise under them, unless they shall 
be deemed unconstitutional. 

In United States v. Boyd et al. (supra) the court 
said, page 580: 

There is another consideration. In deter¬ 
mining the attitude of the Government to¬ 
wards the Indians—all Indians,—the courts 
follow the action of the executive and other 
political departments of the Government, whose 
more special duty it is to determine such 
affairs. (United States v. Holliday , 3 Wall., 
419.) 

In Cherokee Nation v. Hitchcock (187 U. S., 294), 
at'page 308, it is said: 

We are not concerned in this case with the 
question whether the act of June 28, 1898, and 
the proposed action thereunder which is com¬ 
plained of, is or is not wise, and calculated to 
operate beneficially to the interests of the 
Cherokees. The power existing in Congress 
to administer upon and guard the tribal prop¬ 
erty, and the power being political and ad¬ 
ministrative in its nature, the manner of its 
exercise is a question within the province of 
the legislative branch to determine, and is not 
one for the courts. 

In Lone Wolf v. Hitchcock (187 U. S., 553) the 
court uses this language, at page 565: 

Plenary authority over the tribal relations 
of the Indians has been exercised by Congress 
from the beginning, and the power has always 
been deemed a political one, not subject to be 
controlled by the judicial department of the 
Government. 


70 


See also Farrell v. United States (110 Fed., 942). 

And in the absence of specific legislation, the execu¬ 
tive branch of the Government has the power to say 
how long its protection shall be extended to the 
Indians. In United States v. Flournoy Company (69 
Fed.), at page 892, it is said: 

In the absence of direct Congressional action 
on the subject, it is for the executive branch of 
the Government, acting through its appro¬ 
priate channels, to determine when a given 
tribe of Indians, or any portion thereof, has so 
far advanced in civilization, has so far aban¬ 
doned the habits of savage or semisavage life, 
and has so far adopted the customs, laws, and 
mode of life obtaining among the white people, 
that the United States can safely, and in justice 
to inhabitants of the region wherein they dwell, 
as well as with safety and in justice to the 
Indians themselves, and with due regard to the 
treaty obligations assured to them, terminate 
all further control over such Indians, and leave 
them to the protection only of the general laws 
of the country. 

Congress has never withdrawn the support of the 
Government from the Five Civilized Tribes. The 
reservations are continued, and appropriations made 
for the support and maintenance thereof. More than 
this, Congress has specifically declared that the Gov¬ 
ernment shall investigate leases and deeds to Indian 
lands made in violation of its statutes and shall take 
steps in the courts to cancel the same. By the act of 
March 3, 1905 (33 Stat., Part I, 1060), it is provided: 

It shall be the duty of the Secretary of the 
Interior to investigate, or cause to be investi¬ 
gated, any lease of allotted land in the Indian 
Territory which he has reason to believe has 



























































































































































































































































































































































71 


been obtained by fraud, or in violation of the 
terms of existing agreements with any of the 
Five Civilized Tribes, and he shall in any such 
case where in his opinion the evidence war¬ 
rants it refer the matter to the Attorney-Gen¬ 
eral for suit in the proper United States court 
to cancel the same, and in all cases where it 
may appear to the court that any lease was 
obtained by fraud or in violation of such agree¬ 
ments, judgment shall be rendered canceling 
the same upon such terms and conditions as 
equity may prescribe, and it shall be allowable 
where all parties in interest consent thereto to 
modify any lease and to continue the same as 
modified. 

And the act of March 1,1907 (34 Stat., Part I, 1026) 
contains this provision: 

To enable the Secretary of the Interior to 
investigate or cause to be investigated any 
lease of allotted land in the Indian Territory 
which he has reason to believe has been ob¬ 
tained by, fraud or in violation of the terms of 
existing agreements with any of the Five Civi¬ 
lized Tribes, as provided by the act approved 
March third, nineteen hundred and five, ten 
thousand dollars. 

And this appropriation was renewed by the act of 
April 30, 1908 (Indian appropriation act), thus: 

To enable the Secretary of the Interior to in¬ 
vestigate or cause to be investigated any lease, 
power of attorney, contract, deed, or agree¬ 
ment to sell any allotted land which he has 
reason to believe has been obtained by fraud, 
or in violation of the terms of existing agree¬ 
ments with any of the Five Civilized Tribes, as 
provided by the act approved March third, 
nineteen hundred and five, ten thousand dol¬ 
lars. 


72 


And it may be here said that the act of March 3, 
1905, clearly implies the assumption on the part of 
Congress that the United States itself would bring the 
suits contemplated thereby, for it is said “and it 
shall be allowable in cases where the parties in interest 
consent thereto to modify any lease, etc.” What 
parties were intended? Certainly not the Indian 
himself who had already consented to the lease. 

Even then, if Congress were not itself continuously 
declaring that the Government shall protect the 
Indian in his rights, the Attorney-General of the 
United States as part of the executive department, 
may, until Congress has clearly indicated that the 
protection shall no longer be extended, bring actions 
in the name of the United States to rescind Indian 
contracts and deeds which are declared void by its 
statutes. (Flournoy case , 69 Fed., 892.) 

REQUISITES OF A BILL TO REMOVE A CLOUD FROM A 
TITLE 

NATURE OF REMEDY AND CHARACTER OF INSTRUMENT TO 
BE CANCELED—STATE STATUTES MAY BE ENFORCED IN 
FEDERAL COURTS. 

There are several equitable remedies which involve 
the principle of quia timet which, according to the 
text writers, have been more or less confused by the 
courts. This confusion has doubtless arisen from 
their cognate character. They are actions to remove 
a cloud, to quiet title, bills of peace, and a miscellane¬ 
ous class of cases of that character which have been 
commonly spoken of as actions quia timet. Suits 
under the equity jurisdiction to rescind deeds have 



































































































































































































































































































73 


also been held to involve this principle, and have 
added somewhat to the confusion. At the outset 
it may be well to distinguish between these several 
classes of equitable remedies as far as may be possible, 
bearing in mind that many writers have interchange¬ 
ably spoken of these forms of remedies, and, indeed, 
in several instances have treated of them in a single 
chapter, applying the text to the several classes of 
cases generally. 

A cloud on a title has been defined to be an 
outstanding claim or incumbrance which, if 
valid, would impair or affect the title of the 
owner of a particular estate, and which appar¬ 
ently and on its face has that effect, but which 
can be shown by extrinsic proof to be invalid 
or inapplicable to the estate in question. (17 
PL & Pr., 277.) 

A cloud upon title is a title or incumbrance 
apparently valid, but in fact invalid. 

Whenever a deed or other instrument exists 
which may be vexatiously or injuriously used 
against a party after the evidence to impeach 
or invalidate it is lost, or which may throw a 
cloud or suspicion over his title or interest, 
and he can not immediately maintain or pro¬ 
tect his right by any course of proceedings at 
law, a court of equity will afford relief by 
directing the instrument to be delivered up 
and canceled, or by making any other decree 
which justice or the rights of parties may re¬ 
quire. (2 A. & E., 1st ed., 298.) 

Such bills will lie without a previous estab¬ 
lishment of the plaintiffs title at law, for it 
may often happen, as where the plaintiffs 
possession has not been disturbed, that he can 
maintain no action at law to test the defend¬ 
ant's claim. (17 PI. & Pr., 279.) 


74 


In Frost v. Spitley (121 U. S., 552), which was a 
bill to remove a cloud brought by the owner of an 
equitable title, Mr. Justice Gray speaks of the object 
of a “bill to remove a cloud,” but also speaks of it as 
a bill “to quiet the possession of real estate.” 
Whether he intended by this to indicate that bills to 
remove clouds and bills to quiet title are one and the 
same thing is not clear. However, the object of the 
bill in question is thus stated by him at page 556: 

Under the jurisdiction and practice in equity, 
independently of statute, the object of a bill to 
remove a cloud upon title and to quiet the 
possession to real estate, is to protect the owner 
of the legal title from being disturbed in his 
possession or harassed by suits in regard to 
that title; and the bill can not be maintained 
without clear proof of both possession and legal 
title in the plaintiff. 

In 17 PI. & Pr., 277, it is said: 

A bill to quiet title, strictly considered, is 
substantially a bill of peace, and will generally 
lie only in favor of a person in possession who 
has already established his title by one or more 
successful contests at law. It is most fre¬ 
quently used to prevent a multiplicity of suits. 

Story’s Equity, paragraph 826, thus distinguishes 
bills to remove clouds and bills of peace: 

A bill quia timet , or to remove a cloud upon 
the title of real estate, differs from a bill of 
peace in that it did not seek so much to put an 
end to vexatious litigation respecting the prop¬ 
erty as to prevent future litigation by remov¬ 
ing existing causes of controversy as to its title. 
It was brought in view of anticipated wrongs 
or mischiefs and the jurisdiction of the court 





























































































































































75 


was invoked because the party feared future 
injury to his rights and interests. 

In Holland v. Challen (110 U. S., 15), which was a 
bill in equity to quiet title under the Nebraska stat¬ 
ute, Mr. Justice Field speaks of the bill as “a bill of 
peace.” Quoting, beginning page 18: 

* The statute of Nebraska enlarges the class 
of cases in which relief was formerly afforded 
by a court of equity in quieting the title to 
real property. It authorizes the institution 
of legal proceedings not merely in cases where 
a bill of peace would lie, that is, to establish 
the title of the plaintiff against numerous 
parties insisting upon the same right, or to 
obtain repose against repeated litigation of an 
unsuccessful claim by the same party; but also 
to prevent future litigation respecting the 
property by removing existing causes of con¬ 
troversy as to its title, and so embraces cases 
where a bill quia timet to remove a cloud upon 
the title would lie. (Adams on Equity, 202; 
Pomeroy’s Equity Juris., Sec. 248; Stark v. 
Starrs, 6 Wall., 402; Curtis v. Sutter , 15 Cal., 
259; Shepley v. Rangely, 2 Ware, 242; De - 
vonsher v. Newenham, 2 Schoales & Lei., 199.) 

In Whitehead v. Shattuck (138 U. S., 146), which 
was a suit in equity to quiet the title of the plaintiff 
to certain real property in Iowa, the judgment was 
based upon Holland v. Challen, supra. 

In 17 PI. & Pr., at page 279, it is said: 

This distinction between bills to quiet title 
and to remove cloud is not universally recog¬ 
nized and bills to remove a specified cloud 
are frequently spoken of as bills to quiet title 
and vice versa. In fact, there is great conflict 
in the decisions as to the proper classification 
of the various kinds of bills quia timet. 


76 


If there is any distinction between these several 
classes of remedies, it might be found in the fact that 
in one of them, bills of peace, the equitable jurisdic¬ 
tion to prevent a multiplicity of suits is involved and 
that in order to maintain such a bill the complainant 
must have established his title at law. 

Considering these several actions as a unit, there is 
also much conflict in the adjudicated cases upon two 
points. The first is as to whether the muniment of title 
which threatens to prejudice the peaceful enjoyment 
of the complainant’s property is an instrument void 
on its face or one requiring extrinsic evidence to show 
its invalidity. The weight of authority, however, is 
to the effect that if the instrument is void on its face 
it constitutes no cloud which could in anywise embar¬ 
rass the complainant. (17 PL & Pr., 284.) 

In 18 PL & Pr., at page 759, it is said: 

There is a strong line of authority from 
courts of the highest respectability supporting 
the view that equity has jurisdiction to decree 
the cancellation of a deed, bond, note, or other 
obligation, whether the instrument is or is not 
void at law, or whether it is void for matter 
appearing on its face or aliunde , but it would 
seem that according to the weight of authority 
equity has no jurisdiction to rescind or cancel 
an instrument which is void on its face. 

The doctrine that the instrument must not be void 
on its face has been severely questioned and criticised. 
As said in 17 PL & Pr., at page 286: 

The justice and equity of this rule are more 
apparent than real, for even an instrument 
void on its face as a matter of law, or whose 

















































































































































































77 


invalidity will necessarily appear in proceed¬ 
ings to enforce any rights under it, seriously 
diminishes the market value of the property 
affected. In a few cases instruments void on 
their face have been canceled as clouds on 
title, and these cases would seem to be sup¬ 
ported by the better reason. 

In Maloney v. Finnegan (38 Minn., 70) the court, 
while following the weight of authority, severely 
arraigned the doctrine. The court said that the old 
reason assigned for the rule w T as that if the defects 
appeared on the face of the instrument no reason 
existed for equitable interference, because it could 
not be said that any cloud is cast upon the title. He 
refers to the comment of Mr. Pomeroy, vol. 3, sec. 
1399, that the rule is based wholly on verbal logic and 
not upon any principle of justice or common sense 
and that it leads to the strange scene, almost 
daily witnessed in the courts, of defendants urging 
that the instruments under which they claim are void 
and of judges deciding that the court can not inter¬ 
fere, while, from a business point of view, every intel¬ 
ligent person knows that the instrument is a serious 
injury to the plaintiffs title and that the judge him¬ 
self who thus repeats the rule would neither buy the 
property nor lend a dollar upon its security. 

The second point is as to whether the complainant 
must allege that he is in possession of the land and 
prove it. It is impossible to reconcile the cases on 
this point. The relief has been granted to com¬ 
plainants in possession, where no one is in possession, 
and, as an exception to the general rule, where the 
defendant is in possession, under some circumstances. 


78 


But these differences and conflicts, with the excep¬ 
tion of the question of possession, have been rendered 
of small importance by the passage of State statutes, 
enabling and remedial in character, which clearly 
define the requisites of bills involving the principle 
of quia timet. 

The general purpose and effect of these statutes is 
to extend the remedy to cases in which by the settled 
rules of equity no relief could be had, either because 
the adverse claim is not such as to constitute a tech¬ 
nical cloud, or because the plaintiff is not in a situa¬ 
tion to invoke the equitable jurisdiction. 

Holland v. Challen, 110 U. S., 18. 

Whitehead v. Shattuck, 138 U. S., 146. 

Bardon v. Land and River Improvement Com¬ 
pany, 157 U. S., 327. 

Ormsby v. Ottman , 85 Fed., 492. 

These statutes have dispensed with the question as 
to whether the instrument sought to be canceled is 
void on its face and with other questions which arose 
under the original equity jurisdiction. 

The statutes may now be divided into two classes, 
those in which possession by the plaintiff is a requisite, 
and those in which it is not. 

The equity jurisdiction to quiet title, inde¬ 
pendent of statute, was only invoked by a 
plaintiff in possession, holding the legal title, 
when successive actions at law, all of which 
had failed, were brought against him by a sin¬ 
gle person out of possession, or when many 
persons asserted equitable titles against a plain¬ 
tiff in possession holding the legal or an equitable 

































































































































































79 


title. The action has been greatly extended 
by statute, and in many States is the ordinary 
mode of trying disputed titles. The States 
adopting such statutes may be separated into 
two classes, the first and most numerous class 
requiring the plaintiff to be in possession, and 
the second allowing the action to be brought 
by a plaintiff either in or out of possession. In 
almost every instance the statutes, either by 
express terms or through broad and general 
language, allow the action to be maintained by 
persons having equitable titles; in other words, 
a plaintiff need not have a legal title. (Pom¬ 
eroy’s Equity Jurisprudence, vol. 4, sec. 1396.) 

And when the action is under a statute providing 
for the determination of adverse claims, a bill, peti¬ 
tion, or complaint, substantially averring the statu¬ 
tory requisites, is sufficient. (17 PI. & Pr., 326; 
Patou v. Lancaster , 38 Iowa, 494.) 

The bill is generally short, and if it is alleged in sub¬ 
stance that the plaintiff is the owner and in possession 
of certain described land and that the defendant 
claims an estate or interest therein but has none, a 
cause of action under the statute is stated. (17 PL 
& Pr., 326; Durell v. Abbott , 44 Pac. Rep., 647.) 

The statute in force in the present State of Okla¬ 
homa is that of the old Territory of Oklahoma which 
was taken literally from the statutes of Kansas. It 
will be found in the Statutes of Oklahoma, 1893, para¬ 
graph 4491, at page 864, and is as follows: 

An action may be brought by any person in 
possession, by himself or tenant, of real prop¬ 
erty, against any person who claims an estate, 


80 


or interest therein, adverse to him, for the pur¬ 
pose of determining such adverse estate or 
interest. 

Remembering the requisites of an action of this 
character under the original rules of equity as laid 
down in Frost v. Spitley (121 U. S., 552), the extension 
of the remedy by the statute is at once apparent. And 
the question was naturally raised as to whether the 
courts of the United States by entertaining cases under 
the statute thereby attempted to enlarge their equity 
jurisdiction. But the Supreme Court of the United 
States has determined this question in the negative 
and upon the very safe ground that while the statutes 
are an extension of an equitable right they create no 
new equitable jurisdiction. 

A very full discussion of the effect of these statutes 
upon the original rules of equity jurisprudence may 
be found in the case of Wehrman v. Conklin (155 U. S., 
314), by Mr. Justice Brown, commencing at page 322: 

This method of adjusting titles by bill in 
equity proved so convenient, that in many 
of the States statutes have been passed extend¬ 
ing the jurisdiction of a court of equity to all 
cases where a party in possession, and some¬ 
times out of possession, seeks to clear up his 
title and remove any cloud caused by an out¬ 
standing deed or lien which he claims to be 
invalid, and the existence of which is a threat 
against his peaceable occupation of the land, 
and an obstacle to its sale. The inability of a 
court of law to afford relief was a strong argu¬ 
ment in favor of extending the jurisdiction of 
a court of equity to this class of cases. 





































































































































81 


The statute of Iowa, upon which this bill 
is based, is an example of this legislation, and 
provides (sec. 3273) that “an action to deter¬ 
mine and quiet title to real property may be 
brought by any one having, or claiming an in¬ 
terest therein, whether in or out of possession 
of the same, against any person claiming title 
thereto, though not in possession.” 

It will be observed that this statute enlarges 
the jurisdiction of courts of equity in the fol¬ 
lowing particulars: 

1. It does not require that plaintiff should 
have been annoyed or threatened by repeated 
actions of ejectment. 

2. It dispenses with the necessity of his title 
having been previously established at law. 

3. The bill may be filed by a party having 
an equitable as well as a legal title. (Grissom 
v. Moore, 106 Indiana, 296; Stanley v. Holli¬ 
day, 30 N. E. Rep., 634; Echols v. Hubbard, 7 
South. Rep., 817.) 

4. In some States it is not even necessary 
that plaintiff should be in possession of the 
land at the time of filing the bill. 

There remains a question as to whether this en¬ 
largement of the equitable remedy may be enforced in 
the Federal courts; and as to this the Supreme Court 
has declared in many cases that the enlargement of 
the right by the State statute does not preclude the 
Federal courts from entertaining cases thereunder so 
long as section 723, Revised Statutes, inhibiting suits 
in equity in any case wRere a plain, complete, and ade¬ 
quate remedy may be had at law is not contravened. 

A review of those cases follows: 

Clark v. Smith (13 Pet., 195) was the first case. 
This case involved the enforcement in the Federal 


49238—08-6 


82 


court of the statute of Kentucky declaring what shall 
constitute clouds on titles. Mr. Justice Catron de¬ 
clared the statute to have the effect of merely creating 
a new equity and that it does not enlarge the juris¬ 
diction. 

The next case was Parker et al. v. Overman (18 
How., 137). This case did not involve the statute 
for determining adverse claims to real estate, but the 
principle involved is applicable here. The statute 
was that of the State of Arkansas, and directed that 
where lands are sold by a sheriff or other public 
officer the purchaser is authorized to institute pro¬ 
ceedings in court calling upon all persons to come in 
and show cause why the same should not be con¬ 
firmed. The court held that such a proceeding when 
instituted in a State court and removed into the Cir¬ 
cuit Court of the United States constitutes a case 
over which a Circuit Court may take jurisdiction. 

The next was the Broderick will case, found at 
page 503, in 21st Wall. This case involved the 
question as to whether the equity jurisdiction of 
a Federal court could be extended to set aside the 
will or a probate thereof, which proceeding was pro¬ 
vided for by the statute of the State of California. 
The opinion, by Mr. Justice Bradley, contains this 
language, page 519: 

The statute of 1862 has been referred to, 
which gives to the district courts of Cali¬ 
fornia power to set aside a will obtained by 
fraud or undue influence, or a forged will, and 
any probate obtained by fraud, concealment, 
or perjury. Whilst it is true that alterations 




83 


in the jurisdiction of the State courts can not 
affect the equitable jurisdiction of the circuit 
courts of the United States, so long as the 
equitable rights themselves remain, yet an 
enlargement of equitable rights may be ad¬ 
ministered by the circuit courts, as well as 
by the courts of the State. 

Other cases which uphold the right of the federal 
courts to enforce these state statutes are: 

Holland v. Challen , 110 U. S., 15. 

Reynolds v. Crawfordsville Bank , 112 U. S., 405. 
Gormley v. Clark, 134 U. S., 338. 

Whitehead v. Shattuck, 138 U. S., 146. 
Wehrman v. Conklin, 155 U. S., 323. 

Bar don Land and River Improvement Co., 157 
U. S., 327. 

The result of the foregoing seems to be this: That 
these statutes enlarge the equitable right, but the 
original equity jurisdiction is not superseded; that in 
a suit under such statutes a case is made if the bill 
fairly recites the requisites contained therein; that 
such statutes may be enforced in the Federal courts 
subject to section 723, Revised Statutes, limiting the 
equity jurisdiction to cases where a plain, adequate, 
and complete remedy may not be had at law, and sub¬ 
ject, also, to the constitutional right of trial by jury. 

AS TO POSSESSION OF THE LAND. 

If it be a sound contention that the United States, 
in its sovereign capacity, has the same right to rescind 
deeds to Indian lands taken in violation of its laws as 
it has with respect to other lands, little need be said 
as to the usual requirement of possession on the part 
of the complainant. This power exists independently 


84 


of any question of possession. The right of the Gov¬ 
ernment to cancel patents to lands taken in violation 
of its laws is so well established that no repetition of 
the authorities hereinbefore mentioned need be made. 
It is well known that suits in equity are brought daily 
by the Government to cancel patents to lands which 
have been taken up and entered by and are in posses¬ 
sion of individuals. Indeed it is difficult to see how 
the Government can take physical possession of land; 
in this respect the Government can be overreached at 
any time, hence the requisite of possession could not 
well apply. 

In United States v. Saunders et at . (96 Fed., 268), 
hereinbefore cited, the United States appeared as sole 
party complainant to annul a deed given by an Indian 
of the Coeurd’Alene tribe to defendant Saunders, pur¬ 
porting to convey title to the grantor’s homestead. It 
appeared that the act of January 18, 1881 (21 Stat., 
315), relating to homesteads acquired by Indians, did 
not apply to the allotment in question. But the right 
of the United States to sue to annul the deed, had it 
been void by the statute, was distinctly upheld. It is 
true that the court observed that the bill was styled a 
“ bill to quiet title to land,” and the court questioned 
the right of the Government to sue to remove a cloud 
where the defendant was in possession, but it was said 
that the United States might sue to have the deed can¬ 
celed. The distinction drawn by the learned judge in 
that case is not altogether clear, for, if the deed could 
be annulled, the decree would assuredly have the ef¬ 
fect of removing the cloud. 































































































































































































































85 


It seems to be perfectly clear, therefore, that, suing 
by the same token by which it cancels patents to its 
lands generally, the question of possession can not be 
successfully raised. 

Suing as guardian of the Indian, independent of its 
sovereign rights and duties, the question seems to be 
open to a somewhat greater discussion. Upon the 
question of possession there are three different phases, 
first, where the allottee is in possession; second, where 
the lands are vacant and unoccupied, and, third, 
where the land is in the possession of the defendant. 
Of these in their order: 

As to those cases where the Indian is in possession 
no difficulty can arise either under the common law 
or the statute. 

VACANT LAND. 

In the second case—namely, vacant lands—the 
right seems to be equally clear. Obviously so, for 
the reason that if the defendant is not in possession 
there is no remedy by ejectment, as possession is the 
object of that remedy. Authorities to this effect are 
cited: 

Christy v. Springs (11 Okla., 710), was an action to 
quiet title. The land was vacant and unoccupied. 
The court stated that the statute in force in Oklahoma 
requires possession on the part of the plaintiff, but at 
page 714 it is said: 

However, independent of the statute, an 
action to quiet title may be maintained by the 
holder of the legal title where he is not in pos¬ 
session, if the premises are vacant and unoc¬ 
cupied, citing Dongles v. Nuzen (16 Kans., 
515). 


86 


Dongles v. Nuzen (supra), was an action to quiet 
title under the statute, which is similar, word for 
word, to the Oklahoma statute. The opinion in that 
case was by Mr. Justice Brewer. It was held that, 
independently of the statute, an action to quiet title 
may be maintained by the holder of the legal title 
when he is not in possession if the premises are vacant 
and unoccupied. 

O’Brien v. Crietz (10 Kans., 202) was an action to 
quiet title to vacant land. The opinion was by Mr. 
Justice Brewer, and at page 203 he says: 

Upon the trial he (the plaintiff) testified that 
the lot was entirely vacant and unoccupied 
and then offered his deeds, which were objected 
to on the ground that he had not shown him¬ 
self in actual possession. The objection was 
overruled, and this is alleged as error. We 
see none. It was decided in Eaton v. Giles 
(5 Kans., 24) that “an action to quiet title 
may be brought by the holder of the legal title 
when he is not in possession, if the real estate 
for which he holds the title is vacant/ 7 Where 
real estate is unoccupied and vacant the holder 
of the legal title has the constructive posses¬ 
sion. It is true, when there is no actual pos¬ 
session, that the party holding title can not 
proceed under section 594 of the civil code. 
Yet he is not therefore without protection. 
He can have his title determined and protected. 

Utley v. Fee (33 Kans., 683) was an action of eject¬ 
ment. In that case a decree quieting the title to the 
land was attacked on the ground that complainant 
was not in actual possession of the land when the suit 
to quiet title was brought. At page 688 the court say: 

While it is true that a person who is not in 
actual possession of real estate, by himself or 

























































0 




































































































































































































































































87 


tenant, can not quiet the title under section 594 
of the civil code, yet if he holds the legal title 
and the premises are vacant and unoccupied, 
he may maintain an action to quiet his title in¬ 
dependent of said section. (. Dongles v. Nuzen , 
16 Kans., 515.) 

Hoffman v. Woods (40 Kans., 382) was a case 
brought under the statute. No one was in the actual 
possession of the land, although it was proved at the 
trial that the plaintiff had prepared to sink posts on 
the land, and had taken parties there and offered it 
to them for sale. Beyond this there was no possession. 
The court held that a case had been made out under 
the statute, saying, at page 384: 

Slight actual possession we think ought to 
be sufficient to enable a person to maintain this 
action as against a person who has no pretense 
of possession, as in this case. 

Davenport v. Stephens (95 Wisconsin, 456), was a 
case to quiet title under the original equity jurisdic¬ 
tion. At page 459 the court says: 

Some question was raised whether the plain¬ 
tiff has shown such possession as should entitle 
her to maintain this action. It is entirely im¬ 
material whether she was in the actual posses¬ 
sion or not. No other person was in the actual 
possession. 

In Packard v. Beaver Valley Land and Mining 
Company (96 Ky., 249) the bill alleged that the 
land was wild and uninclosed. The language of 
the court upon this point will be found commencing 
page 252 and is as follows: 

This action, however, is not one to quiet 
title. That relief is asked it is true, but only 


88 


incidentally to the relief chiefly sought, which 
is to cancel the deed, alleged to be of record, 
of Rice to the defendant company. It can 
not be doubted that when, by fraud or ques¬ 
tionable contrivance or irregularity, the title 
of the owner of land has been wrested from 
him and converted to the use of another he may 
bring his suit to cancel the conveyance, and it is 
no obstacle to the obtention of relief that the 
plaintiff is not in the actual possession of the 
land. That fact does not make less real the 
cloud on his title, and prevent the value of his 
property from being affected by the obnoxious 
deed. In such a case courts of equity will 
afford relief, as otherwise a wrong would be 
remediless. To this effect are the cases of 
Herr , &c., v. Martin , 90 Ky., 379; National 
Bank Commerce , (fee., v. Licking Valley Land 
and Mining Co ., 15 Ky. L. R., 211; Kant v. 
Hall , idem, 511. 

See also Grand Rapids & I. R. Co. et al. v. Sparrow 
et al ., 36 Fed., 210. 

So. Pac. R. Co. v. Goodrich et al ., 57 Fed., 879. 

Holland v. Challen, 110 U. S., 15. 

Taylor v. Clark, 89 Fed., 7. 

It will thus be seen that while possession was 
said to be a requisite at the common law, the rule 
seems to have been no broader than to require 
lack of possession by the defendant. It is ob¬ 
vious that where the defendant is not in posses¬ 
sion there is no remedy at law, and it would be 
idle to contend that where neither party is in 
possession no remedy can be had in equity. The 
requisite of possession in these statutes is declara¬ 
tory of the common law and there would appear 



* 

































































89 


to be no good reason why a fair construction of 
the statute should not follow the rule of the com¬ 
mon law in that regard. 

EJECTMENT SOMETIMES INADEQUATE. 

Notwithstanding the general rule that where the 
defendant is in possession the remedy at law is ade¬ 
quate, there seem to be many cases in which courts of 
chancery have removed a cloud from the title of the 
complainant in such cases on the ground that the 
remedy by ejectment is inadequate. Quoting from 
17 PL &Pr, 311: 

So a bill to remove a cloud will lie though 
the plaintiff is out of possession, where his 
legal remedy is inadequate, and it would seem 
that ejectment is an inadequate remedy in all 
cases where, although the plaintiff might re¬ 
cover possession, a void instrument or muni¬ 
ment of title would be left outstanding and 
uncanceled. In many cases the courts have 
incautiously stated the rule, without any 
qualification, that possession in the plaintiff 
is necessary to the maintenance of a suit to re¬ 
move a cloud. 

Bunce et al. v. Gallagher et al. (5 Blatchf., 481, 7 Am. 
Law Reg., n. s., 32) was in the Circuit Court for the 
Southern District of New York. The suit was in 
equity to annul a forged deed and to have it canceled 
and the record of it declared void; the defendants 
were in possession. The jurisdiction of the Federal 
court was objected to on the ground that there was 
an adequate remedy at law. Judge Shipman, in 


90 


considering the question whether the plaintiffs had 
an adequate remedy at law, uses this language: 

But this difficulty is not presented by the 
bill. There is no question of title involved be¬ 
tween the plaintiffs and the defendants, except 
that, involved in the question whether the deed 
is forged or not. This forged deed has not im¬ 
paired or complicated the title to this land. 
It has thrown a cloud over it, especially as it 
stands on the records of lands in the county 
where the property is situated; and this cloud 
obscures the true state of the title, and is well 
calculated to lead to misapprehension, embar¬ 
rassment, and mistaken litigation. As the in¬ 
validity of the deed does not appear on its face, 
but can only be made apparent by extrinsic 
evidence, it is peculiarly the duty of a court of 
equity to sweep it away. The case of Ward v. 
Dewey (16 N. Y., 519), cited by the defendants 
on the point, concedes this doctrine. Pratt, 
J., at page 522, says: “But when such claim 
appears to be valid upon the face of the record, 
and the defect can only be made to appear by 
extrinsic evidence, particularly if that evi¬ 
dence depends upon oral testimony to estab¬ 
lish it, it presents a case for invoking the aid of 
a court of equity to remove it as a cloud upon 
the title. The case of fraud in procuring a 
deed to be executed which apparently conveys 
the title * * * is a familiar illustration.” 

There is here no controversy about a doubt¬ 
ful title between these parties, and the ques¬ 
tion of possession has no legal relation to the 
object now sought to be attained by the de¬ 
cree of this court. 

Another Federal case was Sayers etal.v. Burkhardt 
et at. (85 Fed., 246). That case was in the Circuit 
Court of Appeals for the Fourth Circuit. The pur¬ 
pose of the bill was to set aside void judicial proceed- 






















































































. 











































































91 


ings and void deeds made in pursuance thereof and 
to free complainants’ land from the levying of certain 
taxes. It does not clearly appear from the report of 
the case whether the defendant was actually in pos¬ 
session. It may be fairly assumed, however, that 
such was the case from the fact that the bill prayed 
that the complainants be restored to the enjoyment 
of their property. Objection to the bill was made on 
the ground that complainants did not allege that they 
were in possession of the land. Judge Goff, speaking 
for the court, held that the allegation of legal title of 
the complainants was sufficient. At page 247 he 
says: 

In suits of this character such allegations 
are sufficient to give a court of equity juris¬ 
diction, for under such circumstances where 
; fraud is charged, or the cloud is caused by a 
tax deed, the remedy at law is not plain, ade¬ 
quate, and complete. 

In Kruczinski v. Neuendorf and wife (99 Wis., 264) 
the complainants had been deprived of possession un¬ 
der a void decree and conveyances made in pursuance 
thereof. The defendants were in possession. It was 
held that the owners of the legal title, though not in 
possession, may maintain an action in equity to re¬ 
move the cloud independent of the statute. The 
opinion of the court upon this point will be found at 
page 270, and is as follows: 

Another ground of demurrer is that the 
complaint does not state facts sufficient to 
constitute a cause of action. This certainly 


92 


can not be maintained. ( Hawley v. Tesch, 72 
Wis., 299; S. C. 88 Wis., 213; Lamberton v. 
Pereles, 87 Wis., 449.) It is well settled that 
one having the legal title to land, though not 
in possession, may, independently of the stat¬ 
ute, maintain a bill in equity to remove a 
cloud from his title. ( Pier v. Fond du Lac , 38 
Wis., 470; Smith v. Sherry , 54 Wis., 128; 
Smith v. C., M. & St. P. R. Co., 83 Wis., 280; 
Smith v. Zimmerman, 85 Wis., 542; Daven¬ 
port v. Stephens, 95 Wis., 459.) 

Upon this general demurrer, the defendants 
were authorized to avail themselves of the ob¬ 
jection that the plaintiffs had an adequate 
remedy at law. * * * It does not appear, 

however, that the plaintiffs have an adequate 
remedy at law. Ejectment would merely se¬ 
cure the title and possession, leaving the out¬ 
standing deeds and mortgages as clouds upon 
the title. 

In Nixon v. Walter (41 N. J. Eq., 103) it was held 
that while the statute required possession on the 
part of the complainant, the bill, in a proper case, 
might be sustained as a suit quia timet irrespective of 
the statute. 

In Beedle v. Mead (81 Mo., 297) a deputy clerk of 
the court in which a judgment for costs was rendered, 
of his own motion and improperly, issued an execu¬ 
tion thereon and agreed with the deputy recorder to 
buy in the land levied on under the execution. This 
was done and the defendant was in possession. It 
was held that the complainant, though out of pos¬ 
session, had redress in equity to cancel the sheriff’s 
deed as a cloud on his title and need not resort to 





















































































































































93 


ejectment. The opinion of the court on this point 
will be found, commencing page 303, as follows: 

It is next asserted that if the sale attacked 
did not have the effect to pass the legal title, 
the plaintiff being out of possession, has no 
standing in a court of equity to have the deed 
vacated as a cloud on plaintiff’s title. This 
proposition of law is generally correct. (Clark 
v. Ins. Co., 52 Mo., 272; Keane v. Kyne, 66 
Mo., 216.) This doctrine rests on the fact 
that the defect in the title assailed appears of 
record, through which the defendant must 
claim. In such case the action of ejectment 
will hit the blot. But where the judgment roll, 
for instance, does not, on its face, disclose the 
infirmity, and resort must be had to extrinsic 
evidence, especially parol evidence, to estab¬ 
lish the vitiating fact, the right to invoke the 
aid of a court of equity is clear. (Cases above 
cited.) 

Hamilton et al. v. Batlin and wife (8 Minn., 403) 
was a case in which the plaintiff was the owner in fee 
of certain land. One of the defendants forged a deed 
purporting to convey the same to himself. The bill 
was to cancel the forged deed and the record thereof. 
It was held that under the original equity jurisdiction 
the action could be maintained. The court’s opinion 
is quoted from: 

To show that a case of this character is of 
equitable cognizance we have but to refer to 
an elementary writer on the subject. Mr. 
Story in his Commentaries on Equity, vol. 2, 
sec. 701, says, in speaking of the cancellation 
of deeds: “The whole doctrine of courts of 
equity on this subject is referable to the gen¬ 
eral jurisdiction, which it exercises in favor of 


94 


a party, quia timet. It is not confined to cases 
where the instrument having been executed 
is void upon ground of law or equity. But it 
is applied even in cases of forged instruments, 
which may be decreed to be given up, without 
any prior trial at law on the point of forgery.” 
Now that law and equity are administered by 
the same tribunals, no doubt can be enter¬ 
tained of the power to try all such questions in 
the present form of action. 

In King v. Carpenter (37 Mich., 363) the defend¬ 
ant was in possession. Upon this point the courts 
say, page 366: 

A preliminary question is raised upon the 
jurisdiction. The defendant claims that this 
is a bill of peace, filed under the statute to 
quiet title; and that it can only be filed by a 
party in actual possession. This it is said 
the complainant is not shown to have secured. 
And it is claimed a party out of possession must 
bring ejectment. 

Undoubtedly where a party holding a legal 
title seeks to enforce it as against a person in 
possession claiming under an invalid title, or 
one which the party complaining claims to be 
such, the only proper remedy is ejectment, and 
that remedy is perfect. But where a party has 
an equitable cause of action against another, 
coming within any recognized rule of equity 
jurisdiction, such right can be enforced in 
equity, whether the complainant is in posses¬ 
sion or not. 

Smith v. Zimmerman (85 Wis., 542). In that case 
the defendant was in possession. The equity juris¬ 
diction was sustained. The opinion of the court on 
this point, commencing page 544, follows: 

The appellant contends that because the 
plaintiff was not in possession of the premises 



























































































































































































































































































































95 


when she brought her action she can not main¬ 
tain it to remove a cloud upon the title. The 
action is not founded on the statute (S. & B. 
Ann. Stats., sec. 3186), but is an application 
to the inherent jurisdiction which courts of 
equity possess to prevent or remove clouds on 
title to land, and which they have exercised 
from a very early period. Evidence aliunde 
the record of the judgment becomes necessary 
to show that the premises in question, at the 
time of the recovery and docketing of the 
judgment by the defendant Zimmerman, were 
the homestead of the Sanborns, and that 
while it is an apparent lien it is in reality no 
lien or charge thereon. The Sanborns have a 
right thereafter to sell and convey their home¬ 
stead, and the purchaser, the plaintiff, would 
take a valid title, free from the lien of the 
judgment. (S. & B. Ann. Stats., sec. 2983.) 
The plaintiff, as such purchaser, has a right to 
maintain this action to procure an adjudica¬ 
tion declaring that the judgment in question is 
not a lien or charge on the premises she had 
purchased, and to prevent a sale thereof by any 
process depending for its validity solely upon 
the judgment, although she is not in actual 
possession; otherwise she might be without 
adequate remedy. The point raised by the 
appellant has been so frequently decided that 
further discussion is not necessary. (Pier v. 
Fond du Lac , 38 Wis., 479; Goodell v. Blunter, 
41 Wis., 436, 442, and cases cited.) 

In Jackson v. Cooper et al. (10 Tenn., 524), it was 
declared that a court of equity has inherent jurisdic¬ 
tion to declare deeds and other instruments void and 
to order them to be canceled and delivered up even 
though the defendant is in possession of the land, and 
that the plaintiff need not as a necessity resort to a 
court of law in ejectment. In that case there was no 


96 


ground of equity jurisdiction except that of cancella¬ 
tion; the deed was void because of its having been 
made upon a gaming considei^ation. 

POSSESSION BY DEFENDANT IMMATERIAL WHERE THERE 
IS ANY GROUND OF EQUITY JURISDICTION. 

The principle of equity jurisdiction that when the 
court obtains jurisdiction on any equitable ground 
it may proceed to adjust all matters between the par¬ 
ties relating to the subject-matter, whether legal or 
equitable, is so well established and recognized that a 
lengthy discussion of the point is hardly warranted. 
It is mentioned in this brief for the reason that it is 
possible that in many instances fraud has been an 
element in obtaining deeds and leases from Indian 
allottees. It is presumed that many allottees have 
executed instruments without knowing their real 
character as a result of misrepresentation by the ven¬ 
dees and lessees, and that many deeds and leases have 
passed upon consideration so grossly inadequate as to 
warrant interference by a court of equity. It is also 
possible that it will be advisable, if not actually neces¬ 
sary, to ask the court for injunctive relief against 
parties who are pursuing these practices in Okla¬ 
homa. The aid of the court may well be asked to re¬ 
strain the defendant in each case from taking the fur¬ 
ther deeds and leases from the allottees in cases 
where the restrictions have not been removed. In 
such cases, and in all cases where some distinct and 
recognized branch of equity jurisdiction is invoked, 
the court will proceed to remove the cloud from the 
title regardless of the fact that the defendant may be 





































































































































97 


in possession, and that under ordinary circumstances 
the remedy at law would be adequate. 

Quoting from A. & E. Ency., 1st ed., vol. 6, p. 692: 

In general it may be said, however, that 
equity will not take jurisdiction where a plaintiff 
has a complete and adequate remedy at law. 
Accordingly, a court of equity will not take 
jurisdiction of cases arising out of torts, to pre¬ 
vent a mere trespass, in matters of crime, of 
questions of damages pure and simple, and 
many other similar cases. But where the juris¬ 
diction has once been properly acquired by a 
court of equity, it will retain the case, and 
settle matters between the parties which do 
not afford original ground of jurisdiction. 
(See cases there cited.) 

In A. & E. Ency., 2nd ed., vol. 11, p. 201, it is said: 

A more substantial exception than the fore¬ 
going to the doctrine that equity will not take 
jurisdiction where the legal remedy is inade¬ 
quate is found in the rule that if jurisdiction 
has once been assumed, equity will often re¬ 
tain it throughout the litigation, though the 
relief originally sought is denied and that 
finally granted is not equitable in its nature. 
(See cases there cited.) 

In Pomeroy’s Equity Jurisprudence, 3d ed., vol. 1, 
p. 329, the subject is clearly and exhaustively treated 
under the head “The doctrine that jurisdiction exist¬ 
ing over some portion or incident extends to and em¬ 
braces the whole subject-matter or controversy.” 
After a lucid discussion of the principle, Mr. Pomeroy, 
beginning at page 352, says: 

We have seen, in the foregoing paragraphs, 
that this conception of equity jurisdiction has 
19238—08-7 


98 


been steadily applied throughout the whole 
history of the court to a great variety of circum¬ 
stances, litigations, and reliefs. By virtue of 
its operation, and in order to promote justice, 
the court, having obtained jurisdiction of a 
controversy for some purpose clearly equitable, 
has often extended its judicial congizance over 
rights, interests, and causes of action which 
were purely legal in their nature, and has 
awarded remedies which could have been ade¬ 
quately bestowed by a court of law. 

Indeed, it was this salutary principle which led to 
the “Reformed System of Procedure” which has 
since been adopted by the State of New York and 
many other States, and was practically adopted by 
England in the Supreme Court judicature acts; idem 
354. 

As supporting the proposition that a court of equity 
will take jurisdiction of all questions with respect to 
property before it as ancillary to its jurisdiction over 
the main case, attention is invited to the following 
decisions of the Federal courts: 

Gormley v. Clark , 134 U. S., 338. 

Sunflower Oil Co. v. Wilson , 142 U. S., 313. 

Ober v. Gallagher, 93 U. S., 199. 

Hopkins v. Grimshaw, 165 U. S., 342. 

Waite v. O’Neil, 76 Fed., 408. 

North British & Mercantile Ins. Co. v. 
Lathrop, 63 Fed., 508. 

Sill v. Solberg, 6 Fed., 468. 

Hayden v. Snow, 14 Fed., 70. 

Pacific R. R. v. Atlantic & P. R. Co., 20 Fed., 
277. 

The above authorities involve the general prin¬ 
ciple that where the court has jurisdiction on a dis- 

















































































































































































99 


tinct ground it will proceed to adjust all rights be¬ 
tween the parties, whether legal or equitable. 

Coming now to the question of removal of cloud 
from title, where the defendant is in possession, which, 
notwithstanding the authorities hereinbefore cited 
that removal of cloud is an equitable remedy, might 
be held to be a strictly legal remedy, it will be shown 
that even though the defendant be in possession, and 
under ordinary circumstances the case might be one 
for a court of law, a court of equity having jurisdic¬ 
tion on one point will retain the case and adjust all 
rights between the parties. 

Big Six Development Co. v. Mitchell (1st L. R. A. 
(n. s.), 332), was an appeal from a decree of the 
Circuit Court of the United States for the Western 
District of Missouri to the Circuit Court of Appeals 
for the Eighth Circuit. The decree was in favor of 
the complainant to cancel a lease as a cloud on its 
title, and to enjoin the defendants from operating a 
mine covered by the lease. The defendant was in 
possession of the mine, and it was contended that 
the remedy was by ejectment at law. Judge Riner 
delivered the opinion of the court, and at page 339 
he lays down the principle that although the legal 
title has not been settled in an action at law, the 
court, having jurisdiction to restrain the operation 
of the mine and injuries thereto, would proceed to 
remove the cloud by holding the lease to be void. 
Quoting from Judge Riner’s opinion at the same 
page: 

If the only relief sought by the bill in this 
case was to remove the cloud upon plaintiff's 


100 


title, it may well be doubted whether the bill 
could be sustained. (Citing cases.) But the 
bill goes further, and seeks to enjoin the defend¬ 
ant from committing waste and destroying 
the property as a mining property. In such a 
case jurisdiction in equity attaches, even 
where the plaintiff is not in possession. And, 
having obtained jurisdiction for that purpose, 
the court may, for the purpose of preventing 
a multiplicity of suits, retain it for further 
relief, and may remove a cloud upon the title, 
quiet the title, and determine the right of 
possession. 

In this report of the case there is a valuable case 
note taken from the opinion of Judge Philips in the 
lower court. The learned judge treats of the elas¬ 
ticity of the equity jurisdiction, particularly with 
respect to the necessity of meeting new conditions. 
A short quotation follows: 

In the constantly developing complications 
growing out of new conditions and situa¬ 
tions in our complex commercial and business 
affairs the courts, in the very necessities of 
the occasions as they arise, must extend the 
protective, preservative hand of equity to 
meet the extraordinary demands of justice 
in the particular instance (p. 333). 

Indeed it is but an application of the rule that it is 
not enough that there is a remedy at law; it must be 
plain and adequate, or, in other words, as practical 
and efficient to the ends of justice and its prompt 
administration as the remedy in equity. 

In Shipman v. Furniss (69 Ala., 555) the defend¬ 
ant was in possession. The deed had been procured 
by undue influence, and the relief sought was cancel- 
































































































































































































































































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101 


lation of the deed and removal of cloud from the title. 
Demurrer was interposed to the bill on the ground 
that there was an adequate and complete remedy at 
law. Commencing page 562 the court say: 

It is true that the jurisdiction of a court of 
equity can not be invoked, when the sole 
ground of equitable interference is the re¬ 
moval of a cloud from the title, unless the 
complainant is, at the time, in possession. 
(.Arnett v. Bailey , 60 Ala., 435.) But the 
rule is different when the other distinct 
grounds of jurisdiction are averred. In such 
case a court of equity, having assumed juris¬ 
diction for any one purpose, will retain it, that 
the whole litigation may be settled, and 
complete justice be done between the parties. 
(1 Story’s Eq. Jur., secs. 228-9; Lockett v. 
Hurt, 57 Ala., 198; Ray v. Womble, 56 Ala., 32.) 

In Sale and wife v. McLean et al. (29 Ark., 612), the 
jurisdiction was invoked to set aside a fraudulent 
decree as to lands of which the defendants were in 
possession. The opinion of the court upon the ques¬ 
tion of jurisdiction will be found, commencing page 
618, and is as follows: 

The objection is not that this court has not 
jurisdiction of a question of fraud, and to re¬ 
move a cloud upon the title of complainants, 
but that being out of possession and the de¬ 
fendants in possession, the complainants have 
a clear remedy at law, in which the question 
of fraud may be inquired into, and complete 
redress afforded them, and in support of this 
position we are referred to the case of Miller v. 
Neiman and wife (27 Ark., 233), as well as to a 
carefully considered opinion of one of the 
judges of this court, in which, however, two 


102 


of the judges presiding declined to render any 
opinion upon that particular question. (Ap- 
person v. Ford and wife, 23 Ark., 746.) 

The opinion delivered by Judge Fairchild in 
that case, although not authoritative as the 
opinion of the court, seems to have been care¬ 
fully considered with a reference to numerous 
authorities, which would seem to establish the 
position assumed by defendant’s counsel, 
which is, that in order to maintain an action 
to remove a cloud upon the title of property, 
the party who brings his case into a court of 
chancery for that purpose should aver that at 
the time of bringing the suit she was in posses¬ 
sion of the land. But it will also be seen that 
all of these cases are decided upon the ground 
that if the plaintiff is out of possession he has 
a clear remedy in a court of law by ejectment 
against the defendant, who is in possession, 
and in which the question of fraud can be in¬ 
quired into, and full and complete justice done. 
But as the jurisdiction in cases of fraud is con¬ 
current, where the rights of the party can not 
be asserted at law, or in cases where it can, 
when the remedy is not complete at law, the 
party may sue in equity, where complete and 
ample justice may be done, because it is the 
peculiar province of a court of equity to aid in 
administering the law in cases in which, by 
the rules of the common law, complete justice 
can not be done, but in no case to interfere 
with the jurisdiction of the courts of the com¬ 
mon law in cases in which that court has power 
to afford adequate relief; and it is for this 
reason that when a party out of possession has 
a superior legal title he shall be held to resort to 
his action of ejectment to get possession; and 
it would seem that he should do this even when 
there is a cloud upon his title which he seeks to 
remove, which seems to be so well settled by 
adjudicated cases as well as by our own pre- 



















































































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103 


vious decisions ( Miller v. Neiman and wife , 
27- Ark., 233), that, under the state of case 
under which they were made, we must give 
them our approval. 

But it is equally clear that, if for any other 
cause the court of law should be found incom¬ 
petent to do full and complete justice, and 
particularly in case of concurrent jurisdiction, 
a court of equity may rightfully take juris¬ 
diction, and render that full and complete 
justice which the courts of common law may, 
because of the more stringent rules which con¬ 
trol its action, be found incompetent to do. 
Thus, in Branch v. Mitchell, it was held that 
although the complainant was not in posses¬ 
sion, if no one else was in possession, there 
being no one in possession to sue in ejectment, 
the party seeking to get possession and to re¬ 
move a cloud upon its title, might resort to a 
court of equity for redress; and it was also 
held in the same case that, as the complain¬ 
ants held the junior legal title with superior 
equities, he might for that reason also resort 
to equity for redress. 

Mott et at. v. Danville Seminary et al. (129 Ill., 
403) was a suit for partition of land, and in which 
the complainants set up the fact showing a disputed 
title, asking the court to determine the same, and to 
quiet them in their possession. The defendants to 
the suit were in possession at the time the same was 
brought. An objection to the jurisdiction was over¬ 
ruled on the ground that having jurisdiction for the 
purposes of partition the court would retain the case 
and administer the legal right. 

Another Illinois case was Haworth v. Taylor (108 
Ill., 275), in which the defendant was in possession. 


104 


The bill sought to redeem land from a sale on execu¬ 
tion for irregularities and fraud therein, and also to 
set aside cloud caused by the sale. The syllabus upon 
this point is as follows: 

A court of equity may well entertain juris¬ 
diction of a bill by a party out of the posses¬ 
sion of land against one in its possession to 
remove a cloud upon title, where it also seeks 
to redeem from a sale on execution for gross 
irregularities and fraudulent concealment of 
the sale. 

The opinion of the court upon this point will be 
found at page 287 : 

Objection to the jurisdiction to entertain 
the bill, because Haworth was in possession 
at the time of the filing of the bill, and that 
under decisions of this court a bill to remove a 
cloud upon title will not lie where the defend¬ 
ant is in possession. We think it enough to 
say that the bill being, in one of its aspects, to 
redeem, the bill in such respect was well 
brought, irrespective of possession by the de¬ 
fendant. 

POSSESSION BY DEFENDANT IMMATERIAL WHERE SEVERAL 
DEFENDANTS ARE JOINED IN ONE BILL TO AVOID MULTI¬ 
PLICITY OF SUITS; SUCH A BILL IS NOT MULTIFARIOUS. 

Where a single defendant is in possession it might 
be held that the only remedy is by ejectment at law. 
But where several defendants holding under differ¬ 
ent instruments of title from different grantors are 
joined in one suit, the equity jurisdiction can be 
invoked, the jurisdiction being founded upon the 
prevention of a multiplicity of suits. As this propo¬ 
sition may give rise to the related question whether 












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105 


a bill in which are joined several defendants hold¬ 
ing deeds to separate tracts of land, executed by 
different grantors, is open to the objection of multi¬ 
fariousness, the two points may well be considered 
together. If a remedy at law may be pursued in 
equity where a multiplicity of suits will be thereby 
avoided, it necessarily follows that the objection of 
multifariousness could not be maintained against 
such a bill. If, however, the remedy is not one 
ordinarily administered at law and equity has juris¬ 
diction thereof, the objection of multifariousness 
might be properly raised. 

A logical arrangement of the discussion would 
seem to be: 

(a) What community of interest must exist between 
the several defendants against whom a single party 
proceeds'? May the right be a legal as well as an 
equitable one? 

(b) Citation of cases in which equity enforced a 
legal right against several defendants. 

(c) Citation of cases of an original equitable nature 
in which several defendants were joined. 

(d) A brief discussion as to what constitutes mul¬ 
tifariousness. 

Of these in their order: 

(a) Mr. Pomeroy, in his admirable work on Equity 
Jurisprudence, vol. 1, p. 356, beginning paragraph 
243, has given an exhaustive treatise on the doc¬ 
trine that the equity jurisdiction exists in order to 
prevent a multiplicity of suits. At the very outset 


106 


he considers what “multiplicity of suits” is to be 
avoided. 

On page 357 Mr. Pomeroy says: 

In fact, the “multiplicity of suits” which 
is to be prevented constitutes the very 

INADEQUACY OF LEGAL METHODS AND REME¬ 
DIES which calls the concurrent jurisdiction into 
being under such circumstances, and author¬ 
izes it to adjudicate upon purely legal rights, 
and confer purely legal reliefs. On the other 
hand, the prevention of a multiplicity of suits 
is the occasion for the exercise of the exclu¬ 
sive jurisdiction. 

He divides the cases which he is to consider into 
four classes, the third and fourth of which are (quot¬ 
ing from page 360): 

3. Where a number of persons have separate 
and individual claims and rights of action 
against the same party, A, but all arise from 
some common cause, are governed by the same 
legal rule, and involve similar facts, and the 
whole matter might be settled in a single suit 
brought by all these persons uniting as co¬ 
plaintiffs, or one of the persons suing on behalf 
of the others, or even by one person suing for 
himself alone. The case of several owners of 
distinct parcels of land upon which the same 
illegal assessment or tax has been laid is an 
example of this class. 

4. Where the same party, A, has or claims 
to have some common right against a number 
of persons, the establishment of which would 
regularly require a separate action brought by 
him against each of these persons, or brought 
by each of them against him, and instead 
thereof he might procure the whole to be deter¬ 
mined in one suit brought by himself against 
all the adverse claimants as co-defendants. 






J 




































































107 


At page 365, in a preliminary discussion of the ra¬ 
tionale of the doctrine, the author asks the question 
whether there must be some existing cause of action, 
equitable or legal, as a foundation for the jurisdiction. 
In doing so he says, at page 366: 

The very object of preventing a multiplicity 
of suits assumes that there are relations be¬ 
tween the parties out of which other litigations 
of some form might arise. But this prior ex¬ 
isting cause of action, this existing right to 
some relief, of the plaintiff need not be equi¬ 
table in its nature. Indeed, in the great 

MAJORITY OF CASES IN WHICH THE JURISDIC¬ 
TION HAS BEEN EXERCISED THE PLAINTIFF’S 
EXISTING CAUSE OF ACTION AND REMEDIAL 

right were purely legal; and it is because 
the only legal remedy which he could obtain 
was clearly inadequate to meet the demands 
of justice, partly from its own inherent imper¬ 
fect nature and partly from its requiring a 
number of simultaneous or successive actions 
at law, that a court of equity is competent to 
assume or exercise its jurisdiction. It follows 
as a necessary consequence—and this point is 
one of great importance to an accurate concep¬ 
tion of the whole doctrine—that the existing 
legal relief to which the plaintiff who invokes 
the aid of equity is already entitled need not 

BE OF THE SAME KIND AS THAT WHICH HE DE¬ 
MANDS and obtains from a court of equity; on 
the contrary, it may be, and often is, an en¬ 
tirely different species of remedy. 

At page 370, in discussing the question of privity 
of interest, the learned author says: 

Suits have often been sustained by a single 
plaintiff against a numerous class of defendants, 
and by or on behalf of a numerous class of 
plaintiffs against a single defendant, avowedly 


108 


on the ground of “ preventing a multiplicity of 
suits /'’ where there was no relation existing be¬ 
tween the individual members of the class and 
their common adversary to which the term 
“privity” was at all applicable. Of course 
there must be some common relation, some 
common interest, or some common question, or 
else the decree of a court of equity, and the re¬ 
lief given by it in the one judicial proceeding, 

COULD NOT BY ANY POSSIBILITY AVAIL TO PRE¬ 
VENT the multiplicity of suits which is the 
very object of its interference. 

Commencing at page 388, the author considers 
together the third and fourth classes of cases as here¬ 
inbefore set forth, stating that it is plain that the 
same fundamental questions must arise in both of 
these classes. He then takes up for consideration the 
question as to what must be the character, the essen¬ 
tial elements, and the external form of the common 
right, claim, or interest held by the number of persons 
against the single party, or by the single party against 
the number of persons; whether it is necessary that 
the common bond, element, or feature should inhere 
in the very rights, interests, or claims to such an ex¬ 
tent that they create some positive and recognized 
existing legal relation or privity between the individ¬ 
ual members of the group of persons, as well as be¬ 
tween each of them and the single determined party 
to whom they all stand in an adversary position; or 
whether it is enough that the common bond or element 
consists solely in the fact that all the rights, interests, 
or claims subsisting between the body of persons and 
the single party have arisen from the same source, 
from the same event, or the same transaction, and in 



















































































































109 


the fact that they all involve and depend upon similar 
questions of fact and the same questions of law, so that 
while the same positive legal relation exists between 
the single determined party and each individual of 
the body of persons, no such legal relation exists 
between the individual members themselves of that 
body. 

The two leading English cases on this point are 
generally known as “The Case of the Fisheries,” 
Mayor of York v. Pilkington (1 Atk., 282), and “The 
Case of the Duties,” City of London v. Perkins (3 
Brown Pari. C., Tomlins’s ed., 602). In the first 
case a large number of trespassers were named as 
defendants; the corporation had exercised and 
claimed an exclusive right of fishery over a certain 
portion of the river Ouse; the defendants were 
numerous owners of separate tracts of land adjacent 
to the river, and each claimed, in opposition to the 
city, an individual right of fishery. Lord Hard- 
wicke sustained the bill, although the plaintiff had 
not established his exclusive title by any action at 
law, and although the claims of the various defend¬ 
ants were thus wholly distinct, and expressly based 
his decision upon the equitable jurisdiction to pre¬ 
vent a multiplicity of suits. The second case was 
brought to establish the right of the city of London 
to a duty payable by all merchants importing a cer¬ 
tain article of merchandise. The bill was sustained, 
and the case cited and followed by Lord Hardwicke 
in deciding the Fisheries case. 


110 


After discussing Whaley v. Dawson (2 Schoales 
& L., 367), and deciding that the question of multi¬ 
plicity of suits was not in issue, being merely that of 
multifariousness, the author states that the other 
English cases very clearly do not require any privity 
between the members of the numerous body, nor any 
common element or feature inhering in the very 
nature of their individual interests as between them¬ 
selves (pp. 395-6). 

The following is quoted from the footnote at page 
401: 

Even if each individual plaintiff would have 
had a right to equitable relief as well as to the 
legal relief of damages, the equitable jurisdic¬ 
tion to prevent a multiplicity of suits is never 
made to rest upon the particular kind or ex¬ 
tent of relief which an individual party might 
otherwise have obtained in a separate suit. 
It always assumes that some relief, either legal 
or equitable, could have been thus obtained; 
and the only question, in cases of the third and 
fourth classes, is, whether there is sufficient 
common bond among the body of similarly 
situated persons on the one side of the con¬ 
troversy to authorize the court to interfere and 
give complete relief to them or against them 
all in one proceeding, and thus avoid a mul¬ 
tiplicity of suits. 

And commencing page 445 the author says: 

The jurisdiction, based upon the prevention 
of a multiplicity of suits, has long been ex¬ 
tended to other cases of the third and fourth 
classes, which are not technically “ bills of 
peace,” but “are analogous to” or “within 
the principle of” such bills. Under the great- 























































































t 














































































































































































Ill 


est diversity of circumstances, and the greatest 
variety of claims, arising from unauthorized 
public acts, private tortious acts, invasion of 
property rights, violation of contract obliga¬ 
tions, and notwithstanding the positive denials 
by some American courts, the weight of author¬ 
ity is simply overwhelming that the jurisdic¬ 
tion may and should be exercised, either on 
behalf of a numerous body of separate claim¬ 
ants against a single party, or on behalf of a 
single party against such a numerous body, 

ALTHOUGH THERE IS NO “ COMMON TITLE,” 
NOR “ COMMUNITY OF RIGHT” OR OF “ INTER¬ 
EST IN THE SUBJECT-MATTER,” AMONG THESE IN¬ 
DIVIDUALS, BUT WHERE THERE IS AND BECAUSE 
THERE IS MERELY A COMMUNITY OF INTEREST 
AMONG THEM IN THE QUESTIONS OF LAW AND 
FACT INVOLVED IN THE GENERAL CONTROVERSY, 
OR IN THE KIND AND FORM OF RELIEF DE¬ 
MANDED AND OBTAINED BY OR AGAINST EACH 
INDIVIDUAL MEMBER OF THE NUMEROUS BODY. 

In a majority of the decided cases this com¬ 
munity of interest in the questions at issue 
and in the kind of relief sought has originated 
from the fact that the separate claims of all 
the individuals composing the body arose by 
means of the same unauthorized, unlawful, or 
illegal act or proceeding. Even this external 
feature of unity, however, has not always ex¬ 
isted, and is not deemed essential. Courts of 
the highest standing and ability have repeat¬ 
edly interfered and exercised this jurisdiction, 
where the individual claims were not only 
legally separate, but were separate in time, 
and each arose from an entirely separate and 
distinct transaction, simply because there 

1VAS A COMMUNITY OF INTEREST AMONG ALL 
THE CLAIMANTS IN THE QUESTION AT ISSUE 
AND IN THE REMEDY. 



112 


And commencing page 447 it is said: 

The objection which has been urged against 
the propriety or even possibility of exercising 
the jurisdiction, either on behalf of or against a 
numerous body of separate claimants, where 
there is no “ common title,” or community “ of 
right” or "of interest in the subject-matter” 
among them, is that a single decree of the court 
can not settle the rights of all; the legal posi¬ 
tion and claim of each being entirely distinct 
from that of all the others, a decision as to one 
or some could not in any manner bind and dis¬ 
pose of the rights and demands of the other 
persons, and thus the proceeding must necessa¬ 
rily fail to accomplish its only purpose, the pre¬ 
vention of further litigation. This objection 
has been repeated as though it were conclusive; 
but, like so much of the so-called “ legal reason¬ 
ing” traditional in the courts, it is a mere 
empty formula of words without any real 
meaning, because it has no foundation of fact. 
It is simply untrue. One arbitrary rule is con¬ 
trived and then insisted upon as the reason for 
another equally arbitrary rule. The sole and 
sufficient answer to the objection is found in 
the actual facts. The jurisdiction has been 
exercised in a great variety of cases where the 
individual claimants were completely separate 
and distinct, and the only community of interest 
among them was in the question at issue and 
perhaps in the kind of relief, and the single 
decree has without any difficulty settled the 
entire controversy and determined the sepa¬ 
rate rights and obligations of each individual 
claimant. The same principle therefore em¬ 
braces both the technical "bills of peace,” in 
which there is confessedly a common right or 
title or community of interest in the subject- 
matter, and also those analogous cases over 
which the jurisdiction has been extended, in 
which there is no such common right or title or 












































































































































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113 


community of interest in the subject-matter, 
but only a community of interest in the ques¬ 
tion involved and in the kind of relief obtained. 

And on page 455 the author enumerates the charac¬ 
ter of cases coming under the fourth class, among 
which are: 

Suits by a single plaintiff to establish a com¬ 
mon right against a numerous body, where 
there is only a community of interest in the 
questions at issue among these opposing claim¬ 
ants, but none in the subject-matter or title. 

Suits by a single plaintiff against a numerous 
body of persons to establish his own right and 
defeat all their opposing claims, where the 
claims of these persons are legally separate, 
arose at different times and from separate 
sources, and are common only with respect to 
their interest in the question involved and in 
‘the kind of relief to be obtained by or against 
each. 

(b) The citation of authorities will be confined to 
those in the Federal courts. If reference to English 
and State cases is desired, the work of Mr. Pomeroy 
will afford ample citations to such cases. 

DeForest et al. v. Thompson , Commissioner , et al. 
(40 Fed., 375), was a suit to set aside certain sales of 
land made by the sheriff of Boone County, W. Va., 
for the nonpayment of taxes thereon. It was con¬ 
tended that the remedy was by ejectment, the de¬ 
fendants being in possession. The opinion was by 
Judge Jackson, Justice Harlan concurring, and will 
be found commencing page 378: 

Each defendant’s title depends upon the 
same questions, and those questions all have 

49238—08-8 


114 


relation to the proceedings in the Boone cir¬ 
cuit court, and to the attempt to forfeit the 
lands for nonpayment of taxes. It is a case 
of one person having a right against a number 
of persons, which may be determined as to all 
the parties interested by one suit. If the 
plaintiffs brought ejectment against one of the 
defendants, and succeeded, the judgment 
would not conclude the other defendants, 
although the question in each case would be 
precisely the same. But if the plaintiffs can, 
by one comprehensive suit, have their rights 
declared and secured as to all the lands, the 
possession of which is withheld by the defend¬ 
ants, each claiming a particular parcel, but all 
basing their claims upon the same proceedings 
instituted by the officers of the State, may 
they not invoke the jurisdiction of a court of 
equity upon the familiar ground that by suing 
in equity and bringing all the defendants 
before the court in one action they cari avoid 
a multiplicity of suits? I think they can. (1 
Pom. Eq. Jur. Par., 245-269, inclusive.) 

Preteca et al. v. Maxwell Land Grant Co. (50 Fed., 
674) was a bill in equity by the Maxwell Company 
against Preteca and others to quiet title. There was 
a decree for the complainant at the circuit, and an 
appeal to the Circuit Court of Appeals. The bill 
averred that the Maxwell Company was the owner of 
certain lands; that defendants were unlawfully in 
possession of part of the land, and asked to have com¬ 
plainant’s title quieted. The case was heard before 
Caldwell, Sanborn, and Shiras. Judge Caldwell, ren¬ 
dering the opinion of the court upon the contention 
that the remedy at law was adequate, the court at 
page 676 say: 

























































115 


The only error relied upon in argument is 
that' the complainant’s remedy was at law, 
“and a court of chancery has no jurisdiction 
of the cause.” From the averments of the 
bill it is obvious the complainant resorted to 
equity to avoid a multiplicity of suits and 
irreparable damage resulting from continued 
acts of waste and trespass to land. These are 
recognized heads of equity jurisdiction. A 
court of equity may take cognizance of a con¬ 
troversy to prevent a multiplicity of suits, 
although the exercise of such jurisdiction may 
call for the adjudication upon purely legal 
rights and confer purely legal relief; and so a 
court has jurisdiction to restrain waste and 
trespass to land where the facts are of such a 
nature that the law can not afford adequate 
relief. (1 Pom. Eq. Jur., secs. 243, 245, 252, 
271-274, and cases there cited.) 

New York Life Insurance Co. v. Beard et al. (Circuit 
Court for the District of Kansas, 80 Fed., 66). This 
was an action by a judgment creditor of a corporation 
against several stockholders under a statute of Kansas 
authorizing such creditors to proceed by action to 
charge the stockholders for the amount of his judg¬ 
ment. It was contended that there was a remedy at 
law, but District Judge Foster lays down the principle 
that the same point of law was to be determined as 
against all of the stockholders, and that while equity 
would not interfere if there was a plain and adequate 
remedy at law, the prevention of a multiplicity of 
suits at law would justify a resort to equity, and sus¬ 
tained the bill. 

Sang Lung v. Jackson , Collector (85 Fed., 502, Cir¬ 
cuit Court of Northern District of California). A 


116 


number of persons having distinct interests in a 
quantity of tea about to be destroyed by the collector 
of customs joined in an action against the collector 
in equity. At page 504 Judge DeHaven, in passing 
upon a demurrer to the bill challenging the equity 
jurisdiction on the ground of an adequate remedy at 
law and misjoinder, says: 

It is true that each of the complainants has 
a separate and distinct interest in the tea 
which the defendant threatens to destroy, but 
they all have a community of interest in 
the subject-matter of the controversy; that 
is, a common interest in the question whether 
the defendant is authorized by law to destroy 
such tea. The alleged rights of each and all 
of the complainants depend upon the same 
facts, and must therefore, necessarily, be de¬ 
termined by the same principle of law. In 
such a case a court of equity will take juris¬ 
diction in order to prevent a multiplicity of 
actions. (1 Pom. Eq. Jur., sec. 269; Osborne 
v. Railroad Co., 43 Fed., 824; DeForest v. 
Thompson, 40 Fed., 375.) 

In Pennefeather et al. v. Baltimore Steam Packet Co . 
(58 Fed., 481) a suit was brought by some owners of 
goods on behalf of all who might join with them to 
recover their interest in insurance collected by the 
defendant carrier. There was a demurrer to the 
bill which, among other things, set up the ground 
that there was an adequate remedy at law. Quoting 
from the opinion of the court, page 483: 

As to the objection urged that this is not a 
case of equity cognizance, it is true that each 
complainant, if he has a good cause of action, 
might maintain an action at law to recover 



























118 


suits to be avoided or prevented are of a legal 
or an equitable character. The object is the 
same in either case, and the reason for the pro¬ 
ceeding is the same. 

There is a common question in the case be¬ 
tween the receiver and the defendants, namely, 
the question whether the latter were released 
from their stock subscription by the fact that, 
whereas the resolution for increasing the stock 
in the sum of $300,000 was that under which 
their subscription took place, yet subse¬ 
quently, by proceedings to which they did not 
consent, the proposed increase was reduced to 
$150,000. The protest interposed by Bailey 
in behalf of himself and the other stockholders 
to the certification by the comptroller of the 
modified increase of the capital stock of the 
bank assumes that they stood on the common 
ground already stated. And these circum¬ 
stances, namely, the great number of the par¬ 
ties on one side or the other, the identity of the 
question of law, and the similarity of the facts in 
the several controversies between the respective 
parties, are the basis on which the jurisdiction 
rests. The object is to minimize litigation, 
not only in the interest of the public, but also 
for the convenience and advantage of the 
parties. If the receiver was compelled to 
bring separate suits, it would entail a vast 
expense upon the fund in trying over and over 
again the identical questions of law and fact 
with each stockholder, and with no substan¬ 
tial advantage to him, but injury, rather, in 
the increased cost in the immediate suit, and 
the larger burden upon the fund, created by 
the many suits against the others. 

Nor is it necessary, as counsel seem to sup¬ 
pose, that there should be any privity of in¬ 
terest between the stockholders, other than that 
in the question involved and the kind of relief 
sought, the right of their claims being common 














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119 


to them all, in order to bring the case within the 
jurisdiction. In several of the early cases of 
this class which established and confirmed this 
ground of equity no such requirement was 
made, and no such fact existed. ( Mayor of 
York v. Pilkington, 1 Atk., 282; Lord Tenham 
v. Herbert, 2 Atk., 483; City of London v. Per¬ 
kins, 3 Brown, Pari. Cas., 602; New River Co. 
v. Graves, 2 Vern, 431.) In the origin of its 
establishment the jurisdiction was most fre¬ 
quently illustrated upon “ bills of peace,” so 
called, but, as time has gone on, experience has 
proved the utility of this doctrine of equity, 
and its application has been broadened and ex¬ 
tended to a great variety of subjects and con¬ 
ditions to which it is found profitably appli¬ 
cable. A near-by case is that of Louisville, N. 
A.& C. Ry. Co. v. Ohio Vat. Imp. & C. Co. (C. C., 
57 Fed., 42), where it was held that a railroad 
company whose guaranty had been indorsed 
upon the bonds of another company, without 
authority, as it was claimed, might maintain a 
bill in equity against the holders thereof to can¬ 
cel the guaranty on the ground of preventing a 
multiplicity of suits, although it might have a 
good defense at law to each of the bonds. 
Other authorities there cited, and which are 
pertinent also to the present inquiry, are Rail - 
way Co. v. Schuyler, 17 N. Y., 592; Supervisors 
v. Deyoe, 77 N. Y., 219; Black v. Shreeve, 7 
N. J., Eq., 440; Waterworks v. Yeomans, 2 Ch. 
App., 11; and Pom. Eq. Jur., secs. 222, 911, 
et seq. The cases in which a like principle is 
recognized and applied are too numerous for 
citation. Many of them are collected in Pom¬ 
eroy’s Equity Jurisprudence in the notes to the 
sections referred to. It is true there are occa¬ 
sional cases where it seems to have been sup¬ 
posed that there must be some community of 
interest—some tie between the individuals who 
make up the great number; but the great 


120 


weight of authority is to the contrary, and 
there is a multitude of cases which either in 
terms deny the necessity of such a fact or ignore 
it by granting relief where the fact did not exist. 
And, indeed, it is difficult to find any reason 
why it should be thought necessary. It has no 
relevancy to the principle or purpose of the doc¬ 
trine itself, which stands not merely as a make¬ 
weight when other equities are present, but as 
an independent and substantive ground of 
jurisdiction. 

Boyd et al. v. Schneider et al. (131 Fed., 223) was a 
case in the Circuit Court of Appeals for the Seventh 
Circuit. Several depositors of a bank brought suit 
against the directors of the bank arising out of their 
failure to take steps to protect the bank assets from * 
being improperly loaned. Judge Grosscup, speaking 
for the court, at page 228, says: 

The case, as already stated, appears to us to 
be one clearly of equitable cognizance. The 
rule relating to equitable jurisdiction applica¬ 
ble to this case is laid down b}^ Pomeroy as 
follows: Where a number of persons have sepa¬ 
rate or individual claims and rights of action 
against the same party, all arising from some 
common cause, governed by the same rule, and 
involving similar facts, so that the whole mat¬ 
ter might be settled in a single suit brought by 
all the persons uniting as coplaintiffs, or one 
of the persons suing on behalf of himself and 
others; or, where one party has a common 
right against a number of persons, the estab¬ 
lishment of which would regularly require a 
separate action brought by him against each of 
these persons, instead whereof he might pro¬ 
cure the whole to be determined in one suit, a 
bill in equity will lie on the ground that it pre¬ 
vents a multiplicity of suits. (Pomeroy, 
Equity Juris. (2d ed.), vol. 1, sec. 245.) 









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121 


In Hale v. Allinson (188 U. S., 56) the equity juris¬ 
diction was- denied, but the case is so highly instruc¬ 
tive by way of distinction of the foregoing cases that 
attention is invited to it. Under the facts as set forth 
in the bill it appeared that the interests of the defend¬ 
ants were so entirely separate and distinct, and the 
cases subject to such a variety of differences that the 
jurisdiction did not lie. The court, through Mr. 
Justice Peckham, deals at considerable length with 
the equity jurisdiction for preventing a multiplicity of 
suits, calling attention to the great variety of cases in 
which the court has either taken or refused jurisdic¬ 
tion, and holds that there is no uniform rule by which 
the question may be determined. At page 78 the 
learned justice says: 

We are not disposed to deny that jurisdic¬ 
tion on the ground of preventing a multiplicity 
of suits may be exercised in many cases in be¬ 
half of a single complainant against a number of 
defendants, although there is no common title 
nor community of right or interest in the sub¬ 
ject-matter among such defendants, but where 
there is a community of interest among them in 
the questions of law and fact involved in the 
general controversy. (Citing among others, 
Bailey v. Tillinghast, supra.) 

It must be borne in mind that in this case the 
equity jurisdiction upon other grounds was denied, 
and that the opinion of the court with respect to the 
question of multiplicity of suits was independent of 
any other question of equity jurisdiction; The court 
affirms the opinion of the district judge in the same 
case, and quotes it as being a correct statement of the 


122 


law. Repeating part of that quotation found on 
page 79: 

Manifestly, as it seems to me, the defendants 
have no common interest in these questions, 
or in the relief sought by the receiver against 
each defendant. The receiver’s cause of action 
against each defendant is, no doubt, similar to 
his cause of action against every other, but this 
is only part of the matter. The real issue, the 
actual dispute, can only be known after each 
defendant has set up his defence, and defences 
may vary so widely that no two controversies 
may be exactly or even nearly alike. 

In the case at bar, several vendees are made 
defendants to a bill by the United States. The 
complainant contends that a statute declares void all 
deeds taken to lands allotted in severalty to Indians 
of a particular tribe. While this statute was in force 
the several defendants took these deeds from Indians 
belonging to this particular tribe. Manifestly they 
must all stand or fall together. The questions of fact 
are the same, namely, whether the vendor was an 
Indian of that particular tribe, and whether the deed 
was given during the time the restrictive statute was 
in effect. The point of law, if any, is the same, 
namely, whether the provisions of the statute are 
valid. The simple, clear-cut nature of the case is 
easily distinguishable from Hale v. Allinson , and is 
clearly within the rules laid down therein in support 
of the equity jurisdiction. 

(c) In So. Pac. R. R. Co. v. United States (200 U. S., 
346) the bill was brought by the Government, under 
an act of Congress to recover from a railroad com- 




















































































































































































































































123 


pany the value of lands erroneously patented and 
sold by it to numerous persons, some of whom were 
made defendants as representatives of a class. All 
of the rights of the entire class were determined in 
the one suit, their right and title depending upon the 
same point of law. 

Bitterman v. L. & N. R. R. (207 U. S., 205) was a 
suit in which the Supreme Court of the United States 
clearly defined the right to join in one suit a number 
of defendants where the same relief is sought against 
each, and the same principles of law are to be applied 
although there is no privity between them. The 
syllabus of the case is as follows: 

An action against a number of defendants is 
not open to the objections of multifariousness 
and of misjoinder of parties if the defendants’ 
acts are of a like character, the operation and 
effect whereof upon the rights of complainants 
are identical and in which the same relief is 
sought against all defendants, and the defenses 
to be interposed are necessarily common to 
all defendants and involve the same legal 
questions. 

The bill was filed by the complainant to enjoin a 
number of ticket brokers from dealing in nontrans- 
ferable round-trip tickets issued at reduced rates 
for passage over the railway lines of the complainant. 
It was urged that there was an improper joiner of 
defendants and of independent causes of action. 
Quoting from the opinion of Mr. Justice White, at 
page 226: 

The proposition that the bill was multifa¬ 
rious because of the misjoinder of parties and 


124 


causes of action was not assigned as error in 
the Circuit Court of Appeals, and, therefore, 
might well be held not to be open. But pass¬ 
ing that view, we hold the objection to be un¬ 
tenable. The acts complained of as to each 
defendant were of a like character, their oper¬ 
ation and effect upon the rights of the com¬ 
plainant were identical, the relief sought 
against each defendant was the same, and the 
defenses which might be interposed were com¬ 
mon to each defendant and involved like legal 
questions. Under these conditions the case is 
brought within the principle laid down in 
Hale v. Allinson (188 U. S., 56, 77). 

In United States v. Curtner (26 Fed., 296) the 
United States proceeded against a number of defend¬ 
ants to set aside patents to lands which were allotted 
to the State of California, and by the State patented 
to private parties. In answer to the contention that 
the bill was multifarious the court at page 298 says: 

It is claimed that the action is multifarious, 
in that each of the parties defendant has a 
separate patent from the State. These lands 
were listed to the State under one act. It is 
possible that they were listed at different 
times, but it was all done under one act, and 
the rights of the railroad company, the mov¬ 
ing cause of this suit, are derived from the 
United States under one act. There are there¬ 
fore two points of title common to all the par¬ 
ties. The same questions arise as to all of 
these defendants, and the case of each will be 
decided on the same issues and the same testi¬ 
mony. There is no difficulty, then, in litiga¬ 
ting all the questions, and the rights of all the 
parties, in the same suit. In this matter of 
multifariousness, in equity practice, there is 
no definite, absolute, unbending rule. It rests 















































































































































































































































































125 


very much in the discretion of the court. The 
litigation in this suit will prevent a multi¬ 
plicity of suits. A suit brought against each 
defendant, respectively, would be oppressive 
to the Government and to all parties, and be 
much more expensive to both. I think the 
bill is unobjectionable in that particular. 

In Osborne et at. v. Wisconsin Cent. R. Co. (43 Fed., 
824) the plaintiffs claimed to be the owners of certain 
distinct tracts of land acquired by them under the 
homestead and preemption laws of the United States. 
The railroad company claimed the land and threat¬ 
ened to bring actions of ejectment against each of the 
plaintiffs. The plaintiffs joined in this suit to quiet 
title. Mr. Justice Harlan, sitting at the circuit, de¬ 
livered the opinion of the court, which will be found 
commencing page 826, and is as follows: 

The demurrer to the bill presents the ques¬ 
tion whether the case is one justifying the in¬ 
tervention of a court of equity, or whether the 
question of title to each tract—all the tracts 
being within a larger boundary, and the whole 
being claimed by the railroad company as a 
part of its place lands under the act of 1864— 
must be determined in separate actions of 
ejectment against the respective plaintiffs. 

We are of the opinion that the objection to 
the bill is not well taken. Were the lands 
held by the plaintiffs granted by the act of 
Congress of 1864 for the benefit of the road 
named in its third section, or were they, when 
that act was passed, by reason of their having 
been previously withdrawn from sale or loca¬ 
tion “ reserved to the United States,” and 
therefore, within the meaning of the sixth 
section, excluded from the grant made by 
the third section? If, when the act of 1864 


126 


was passed, they were “ reserved to the United 
States,” the law is for each of the plaintiffs. 
While the plaintiffs have separate and dis¬ 
tinct interests because of their respective 
claims of ownership of separate and distinct 
tracts of land, they have a community of 
interest in the subject-matter of the contro¬ 
versy relating to these lands, and a common 
source of title, namely, the action of the Land 
Department opening these lands for entry 
under the homestead and preemption laws 
of the United States. They have thus a 
community of interest in the questions of law 
and fact upon which the issue between the 
railroad company and each plaintiff depends. 
The company’s claim is good or bad against 
all the plaintiffs, as it may be good or bad 
against any one of them; and yet a judgment 
in favor of one, in an action of ejectment 
brought by the company, would not avail the 
others in separate actions of ejectment against 
them. The case is peculiarly one in which 
the jurisdiction of a court of equity may be 
invoked in order to avoid a multiplicity of 
suits. It belongs to the class “ where a num¬ 
ber of persons have separate and individual 
claims and rights of action against the same 
party, but all arise from some common cause, 
are governed by the same legal rule, and 
involve similar facts, and the whole matter 
might be settled in a single suit brought by 
all these persons uniting as coplaintiffs, or 
one of the persons suing on behalf of the 
others, or even by one person suing for him¬ 
self alone.” (1 Pom. Eq. Jur., secs. 245, 255, 
257, 268, 273, and authorities cited in notes 
to these sections. Crews v. Burcham , 1 Black, 
352, 357.) In such cases the plaintiffs are 
united by a common tie, created by identity 
of interest in the decision of the same ques¬ 
tions of law and of fact, and have a common 












. 


* 

























































































































































127 


adversary. The fact that the several tracts 
of land here in dispute were entered at differ¬ 
ent dates, and by different persons, is of no 
consequence, as the validity of each entry, 
as against the railroad company, depends upon 
precisely the same questions of law and fact. 

California Fig-Syrup Co. v. Worden & Co. et al. (86 
Fed., 212) was a suit brought against several defend¬ 
ants to enjoin them from making, selling, or offering 
for sale any preparation under the name of “ Syrup of 
Figs.” The objection of multifariousness was urged 
to the bill. The opinion of the court on this point 
will be found at page 219: 

With respect to the technical objection that 
the bill is multifarious, it is perhaps sufficient 
to say that the bill alleges that the defendants, 
knowing the premises, have fraudulently con¬ 
spired together to perpetrate the frauds set 
forth in the bill. Moreover, whether an ob¬ 
jection of this kind should be entertained 
depends largely upon the discretion of the 
court. As a general rule, it may be said that, 
whenever the several matters set up in the bill 
require entirely distinct and different kinds of 
relief, the bill is multifarious; but, if the relief 
sought is the same as against all the defend¬ 
ants, it does not appear that the objection 
should be considered sufficient to sustain the 
demurrer. 

The case, however, that seems to be decisive of the 
case at bar is that of United States v. Flournoy Live- 
Stock & Real-Estate Co. et al. (69 Fed., 886). In that 
case the United States brought its bill against 231 
defendants, alleging that they had illegally secured 
leases from Indian allottees and had taken possession 


128 


of the land. It was alleged that the statute under 
which the Indians had taken their allotments declared 
that all leases of the same should be void. After 
alleging the illegal taking of the leases and the illegal 
possession of the lands, the bill asked for an injunction 
restraining the defendant from interfering with the 
Indian agent in his efforts to clear the reservation of 
the intruders and from in any manner interesting or 
inducing the Indians to lease or otherwise contract 
about their lands, and commanding them to vacate all 
lands held by them. A demurrer to the bill set up 
that there was an adequate remedy at law, and that 
the bill was multifarious in joining a number of de¬ 
fendants upon separate causes of action. Quoting 
from the opinion of Judge Shiras at page 890: 

The second ground of demurrer is that the 
bill is multifarious, because it is exhibited 
against a large number of defendants who held 
under different leases, executed by different 
lessors, and that there is no common interest 
justifying the bringing the one suit, instead of 
separate proceedings against each defendant. 

In Walker v. Powers (104 U. S., 245) it is 
said: “By multifariousness is meant the im¬ 
properly joining in one bill distinct and inde¬ 
pendent matters, and thereby confounding 
them; as, for example, the uniting in one bill 
of several matters, perfectly distinct and un¬ 
connected, against one defendant, or the 
demand of several matters, of a distinct and 
independent nature, against several defend¬ 
ants, in the same bill.” (Story, Eq. PL, sec. 
271.) 

In the case at bar the complainant’s right of 
action is based upon the trust relation existing 
between the United States and the Indians in 




























































































































































































































129 


regard to the lands in question, and there is 
therefore a common interest and a common 
question, as against all the defendants; and 
therefore the bill will not be held to be multi¬ 
farious, being within the rule stated in Story, 
Eq. PL, sec. 285, to wit: 

Another exception to the general doctrine 
respecting multifariousness and misjoinder, 
which has already been alluded to, is, when the 
parties (either plaintiffs or defendants) have 
one common interest touching the matter of 
the bill, although they claim under distinct 
titles and have independent interests (in which 
event the objection of multifariousness will 
not be sustained). 

(d) In Gaines v. Chew et al. (2 How., 619) the court 
at page 642 say: 

It is well remarked by Lord Cottenham in 
Campbell v. Mackay (7 Sim., 564, and in 1 Myl. 
& C., 603,) “ to lay down any rule, applicable 
universally, or to say, what constitutes multi¬ 
fariousness, as an abstract proposition, is upon 
the authorities, utterly impossible.” Every 
case must be governed by its own circum¬ 
stances; and as these are as diversified as the 
names of the parties, the court must exercise 
a sound discretion on the subject. Whilst 
parties should not be subjected to expense and 
inconvenience in litigating matters in which 
they have no interest, multiplicity of suits 
should be avoided, by uniting in one bill all who 
have an interest in the principal matter in con¬ 
troversy, though the interests may have arisen 
under distinct contracts. 

In a course of reasoning in the above-cited 
case, Lord Cottenham observes: “ If, for in¬ 
stance, a father executed three deeds, all vest¬ 
ing property in the same trustees, and upon 
similar trusts, for the benefit of his children, 

49238—03-9 


130 


although the instruments and the parties bene¬ 
ficially interested under all of them were the 
same, it would be necessary to have as many 
suits as there were instruments. That is a 
proposition (he says) to which I do not assent. 
It would, indeed, be extremely mischievous, 
if such a rule were established in point of law. 
No possible advantage could be gained by it; 
and it would lead to a multiplication of suits, 
in cases where it could answer no purpose to 
have the subject-matter of contest split up into 
a variety of separate bills/’ The same doc¬ 
trine is found in Story’s Equity Pleading, sec. 
534; Attorney-General v. Craddock , 3 Myl. & 
C., 85; 7 Sim., 241, 254. 

In Walker v. Powers (104 U. S., 245) multifarious¬ 
ness is thus defined by Mr. Justice Miller at page 251: 

By multifariousness “is meant the improp¬ 
erly joining in one bill distinct and independent 
matters, and thereby confounding them; as, 
for example, the uniting in one bill of several 
matters, perfectly distinct and unconnected, 
against one defendant, or the demand of sev¬ 
eral matters of a distinct and independent 
nature against several defendants in the same 
bill.” (Story Eq. PL sec. 271.) In Daniell’s 
Chancery Practice, 335, it is said in explana¬ 
tion of this that “ it may be that the plaintiffs 
and defendants are parties to the whole of the 
transactions which form the subject of the 
suit, and, nevertheless, those transactions may 
be so dissimilar that the court will not allow 
them to be joined together, but will require 
distinct records.” 

Singer Mfg. Co. v. Springfield Foundry Co. et al. 
(34 Fed., 393), the court, citing Oliver v. Pratt (3 
How., 333), say: 

The defense of multifariousness is also relied 
upon. The defendant Duckworth has an- 






















































































































131 


swered, proofs have been taken, and a hearing 
had upon the merits of the bill. I do not see 
in what respect the defendant suffers any 
injury by having these causes of action heard 
together. All the patents sued upon relate to 
one machine, and the defendant is not preju¬ 
diced by this joinder. Whether a bill is multi¬ 
farious or not must depend upon its own cir¬ 
cumstances, and must necessarily be left to the 
discretion of the court. 

In Powers v. Keercher (9 Iowa, 422) the court says: 

The rule is one of defense; although the 
matters are distinct, yet, if justice can not 
be administered between the parties without 
multiplicity of suits, the objection of multi¬ 
fariousness will not prevail. 

And Mr. Justice Story observes: 

The conclusion, to which a close survey of 
all the authorities will conduct us, seems to 
be, that there is no positive, inflexible rule, as 
to what * * *, constitutes multifarious¬ 

ness which is fatal to the suit on demurrer. 
(Par. 539.) 

These courts have always exercised a sound 
discretion in determining whether the subject- 
matters of the suit are properly joined and 
whether the parties, plaintiffs or defendants 
are also properly joined or not. (Story Eq. 
PI., par. 539, citing Oliver v. Pratt , supra.) 

Quoting from Jensen’s Chancery Practice, page 26: 

As to what constitutes multifariousness 
no general rule can be laid down. Every 
case must be governed by its own circum¬ 
stances, and the court must exercise a sound 
discretion; still it may be said generally 
that there must be a common interest, a com¬ 
mon ground of relief, and a common ground 
of invalidity. (Citing cases.) 


132 


Beach on Modern Equity Practice, vol. 1, p. 142, 
par. 115, speaking of multifariousness, says: 

It is almost universally declared that every 
case must be governed by its own circum¬ 
stances, and that the question is left to the 
discretion of the court. 

TENDER OF PURCHASE MONEY UNNECESSARY. 

It may be contended that in the case of void deeds 
the amount of the purchase money must be tendered. 
This claim, if made, will doubtless be based upon the 
equitable principle which has been applied in some 
cases of rescission and cancellation, quieting title, 
removal of cloud, etc., that one seeking equity must 
do equity; and it is conceded that in many cases in¬ 
volving these heads of equity jurisdiction the principle 
has been applied. There is a great variety of cases, 
however, with an equally great variety of decisions, 
and no general rule is laid down. The controlling 
principle is the equitable maxim just quoted; and, 
of course, no one may invoke the maxim unless 
he be possessed of an equity. 

There are several reasons why a tender by the 
United States in these cases is unnecessary. They 
are as follows: 

(1) The suit is not one between vendor and vendee . 

This is not a case, at least in two of its aspects, 
where two persons have entered into a transaction 
and one of them invokes the equity jurisdiction to 
rescind the transaction or to cancel the executed 
instrument. It is not a case between the Indians 
and their vendees and lessees. It is a suit between 




























































































133 


the United States and the lessees and vendees in 
which the United States appears in its sovereign 
capacity as party complainant for the purpose of 
enforcing the conditions attached to its grants and 
to clear the allottee’s title in order to carry out its 
guarantees arising from solemn treaty obligations. 
It also sues to rescind acts forbidden by the Indian 
treaties and by the laws of Congress relating to a 
subject which is entirely within the control of the 
Federal Government, and it has the right, independ¬ 
ent of the relations between vendor and vendee and 
lessor and lessee, to see that its laws are respected 
and that the effect of acts done in open violation and 
defiance of such laws is neutralized. 

This power is not unique nor unusual. It is ex¬ 
ercised by the Government in all cases where it has 
plenary authority and control over a particular sub¬ 
ject-matter. It was exercised and expressly upheld 
in the famous case of In re Debs (158 U. S., 564). 
That case .upheld the right of the Government, in¬ 
dependent of statute, to appear as party complain¬ 
ant in a bill to remove and enjoin obstructions to 
highways used in interstate commerce and in the 
transportation of the mail. 

It is highly significant that in the Flournoy cases, 
in which the Government appeared as sole party com¬ 
plainant to restrain lessees and sublessees from enter¬ 
ing upon Indian lands leased in violation of its treaties 
and laws and to declare such leases void, not the 
barest suggestion was made, either in the pleadings, 
the contentions of counsel, or in the lengthy opinion 


134 


of the court, that the United States should pay to the 
lessees the rental money for the unexpired term. 
Indeed, as will be hereinafter shown by quotations 
from those cases, the court refused even to recognize 
any equity in the fact that the lessees had growing 
crops upon the leased lands at the time they were 
enjoined and the leases declared void. 

And the same is true of United States v. Saunders 
(96 Fed., 268), in which the United States brought its 
bill in equity to quiet title to land which an Indian 
had attempted to convey and as to which there was a 
restriction on alienation. It will be remembered that 
in that case the court held, and rightfully so, that the 
restriction on alienation did not apply in that par¬ 
ticular case, but the court, possibly unnecessarily, 
went into the other questions in the case. It ques¬ 
tioned the right of the United States to ask for the 
special relief prayed in the bill, but it did say that 
under the general prayer for relief the Government 
would be entitled to have the deed surrendered for 
cancellation. And throughout this whole searching 
analysis of the case there is not the slightest sug¬ 
gestion from the court as to any obligation on the 
part of the United States to tender the purchase 
money. 

If, irrespective of the relation of guardian, the 
United States rightfully appears as party complainant 
in these suits, there is no theory upon which the de¬ 
fendants can demand of it a return of the purchase 
money. The suit does not rest upon any privity of 
contract. If the decree sought by the United States 



























































































































































135 


shall cause a failure of consideration the vendees and 
lessees might possibly have their action in assumpsit 
against their vendors and lessors. 

(2) A sovereign government is not required to tender 
purchase price of lands received in a manner not per¬ 
mitted by its statutes. 

But there is another principle upon which the 
United States may sue in these cases without making 
tender. We have seen that the disposal of lands 
to the Indian tribes and the members thereof rests 
upon the same provision of the Constitution under 
which Congress disposes generally of the public 
domain. It is the power “ to dispose of and make 
all needful rules and regulations respecting the 
territory or other property belonging to the United 
States.” (Constit., Art. IV, sec. 3, cl. 2.) We have 
further seen that “all lands in the Territories, not ap¬ 
propriated before they were acquired, are the exclu¬ 
sive property of the United States, to be disposed of to 
such persons, at such times, and in such modes, and 
by such titles, as the Government may deem advan¬ 
tageous.” (Irvine v. Marshall , 20 How., 558.) And 
that “ Congress has the sole power to declare the dig¬ 
nity and effect of titles emanating from the United 
States.” (.Bagnell v. Broderick, 13 Pet., 436.) 

We have further seen that there is no difference 
in principle between the wrongful acquisition of 
land, or acts which militate against the purity of 
the title thereto, under the general land laws and 
the wrongful acquisition of or acts affecting the 
title to lands which are placed in the hands of In- 


136 


dian tribes or the members thereof upon the ex¬ 
press condition that they shall go no further; and 
that if the United States may have relief in the 
one instance there is no reason why it may not 
have the same relief in the other. 

If the United States can act in the one case with¬ 
out making tender it would seem logically to follow 
that it may in the other, if, indeed, there is any 
theory at all upon which the question could be 
raised with respect to these Indian lands. Waiving 
the striking difference between the two cases, the 
United States actually receiving the money in one 
instance and neither receiving nor having any 
connection with the purchase price in the other^ 
it has been definitely settled that in suing to undo 
the acts of violators of its land laws the Govern¬ 
ment is not required to tender the money paid 
by the defendants. It has brought hundreds of 
suits to recover lands and to cancel patents thereto 
obtained in a manner not permitted by its laws, and 
it has never been required to make tender in order 
to maintain the suit. 

The Supreme Court of the United States has 
specifically held that no such tender is necessary. 
In the case of the United States v. Trinidad Coal & 
Coking Co. (137 U. S., 160) the bill averred that 
that coal company had entered into a scheme 
whereby its officers, stockholders, and employees 
were to make entries of coal lands at $10 and $20 
per acre, in their own names and ostensibly for 
their use and benefit, while in truth and fact the 




















































































































































































































































137 


lands were to be taken up for the benefit of the 
coal company, and that it had paid the full pur¬ 
chase price in each entry. The bill further averred 
that such a scheme was not warranted by the stat¬ 
ute under which the lands were taken up, and sued 
to cancel the patents, and the bill was sustained. 
It was contended by the defendant corporation that 
the Government, asking equity, must do equity, and 
that therefore the bill was defective in not contain¬ 
ing an offer to refund the moneys which were paid 
when the lands were entered. Quoting from the 
opinion of Mr. Justice Harlan, beginning page 170: 

It is contended by the defendant that the 
United States is subject, as a suitor, to the 
same rules that control courts of equity when 
determining, as between private persons, 
whether particular relief should be granted; 
that the Government, asking equity, must do 
equity; and, consequently, that the bill is de¬ 
fective in not containing a distinct offer to re¬ 
fund the moneys which, it is alleged, were fur¬ 
nished by the defendant to the several persons 
to whom patents were issued. The rule re¬ 
ferred to should not be enforced in a case like 
the present one. In the matter of disposing 
of the vacant coal lands of the United States 
the Government should not be regarded as oc¬ 
cupying the attitude of a mere seller of real 
estate for its market value. It is not to be 
presumed that the small price per acre re¬ 
quired from those desiring to obtain a title to 
such lands had any influence in determining 
the policy to be adopted in opening them to 
entry. They were held in trust for all the 
people ; and in making regulations for dispos¬ 
ing of them Congress took no thought of their 
pecuniary value, but, in the discharge of a high 


138 


public duty and in the interest of the whole 
country, sought to develop the material re¬ 
sources of the United States by opening its 
vacant coal lands to entry by individuals and 
by associations of persons at prices below their 
actual value. The controlling object of 

THIS AND SIMILAR SUITS IS TO ENFORCE A PUB¬ 
LIC STATUTE AGAINST THOSE WHO HAVE VIO¬ 
LATED ITS PROVISIONS. It IS NOT DISPUTED 
THAT THE ATTORNEY-GENERAL MAY, IN VIRTUE 
OF THE AUTHORITY VESTED IN HIM, INSTITUTE 

this suit. According to the allegations 

OF THE BILL, WHICH ARE ADMITTED TO BE TRUE, 
THE DEFENDANT IS A WRONGDOER AGAINST 

whom the Government seeks to vindicate 

ITS POLICY IN REFERENCE TO THE DEVELOP¬ 
MENT OF ITS VACANT COAL LANDS. Congress, 
when establishing that policy, was not bound 
to assume that individuals or associations of 
individuals would attempt to defeat it by 
means of fraudulent schemes or otherwise. If 
the defendant is entitled, upon a cancellation 
of the patents fraudulently and illegally ob¬ 
tained from the United States, in the name of 
others, for its benefit, to a return of the moneys 
furnished to its agents in order to procure such 
patents, we must assume that Congress will 
make an appropriation for that purpose, when 
it becomes necessary to do so. The proposi¬ 
tion THAT THE DEFENDANT, HAVING VIOLATED 
A PUBLIC STATUTE IN OBTAINING PUBLIC LANDS 
THAT WERE DEDICATED TO OTHER PURPOSES, 
CAN NOT BE REQUIRED TO SURRENDER THEM 
UNTIL IT HAS BEEN REIMBURSED THE AMOUNT 
EXPENDED BY IT IN PROCURING THE LEGAL 
TITLE, IS NOT WITHIN THE REASON OF THE OR¬ 
DINARY RULE THAT ONE WHO SEEKS EQUITY 
MUST DO equity; AND, IF SUSTAINED, WOULD 
INTERFERE WITH THE PROMPT AND EFFICIENT 
ADMINISTRATION OF THE PUBLIC DOMAIN. Let 
the wrongdoer first restore what it confesses to 







































































































139 


have obtained from the Government by means 
of a fraudulent scheme formed by its officers, 
stockholders, and employees in violation of 
law. 

In United States v. Minor (114 U. S., 233) there was 
certified to the Supreme Court of the United States, 
among other questions, the following: 

IV. When the United States files a bill to 
vacate a patent, on the ground that it was 
fraudulently obtained upon false testimony, as 
alleged in said amended bill, whether it is neces- 
K sary to offer in the bill to return the purchase 
money paid for the land by the patentee? 

This question was answered in the negative with¬ 
out a word of comment (p. 244). 

It is true that there is a difference in fact between 
one who acquires land directly from the Government 
and one who acquires land from an Indian allottee 
as to which there is a restriction upon alienation. 
But the same principle is controlling *n both instances. 
Congress has said upon what terms and under what 
conditions land may be transferred, and it would be 
idle to contend that its control remains in one case 
and not in the other. That the United States has 
the right to invoke the aid of the courts to set aside 
patents for and conveyances of land obtained in vio¬ 
lation of law has been decided in— 

United States v. Minor , 114 U. S., 233; 

Moore v. Robbins, 96 U. S., 530; 

United States v. Hughes, 11 How., 552; 

United States v. Atherton, 102 U. S., 372; 

Moffat v. United States, 112 U. S., 24; 

Multan v. United States, 118 U. S., 271. 


140 


And it is confidently contended that while the 
property rights of the United States must be deter¬ 
mined by the same rules applicable to other litigants, 
it does not necessarily follow that the same remedy, 
procedure, or relief will be given by the courts to one 
as to the other. And a striking illustration of this 
contention is found in the fact that the highest court 
of the land has repeatedly declared the right of the 
United States to recover land taken up without au¬ 
thority of law, and yet Congress has never appro¬ 
priated a penny for the tender of the money received 
by it as the purchase price of such lands. 

The Constitution of the United States provides: 

No money shall be drawn from the Treasury, 
but in consequence of appropriations made by 
law. (Constit., Art. I, sec. 9, cl. 7.) 

And the fact that there is no provision in the law 
whereby money can be obtained from the Treasury 
to tender the purchase money received by the Govern¬ 
ment indicates the legislative intention that no offer 
to repay should be required. The Federal law is su¬ 
preme and must control. 

This is the law as laid down in the case of the State 
of Texas v. Snyder (66 Tex., 687). If any authority 
in addition to that contained in the case of United 
States v. Trinidad Coal Company is needed it will be 
found in this case. That was a suit brought by the 
State of Texas to recover school lands alleged to have 
been purchased from the State in violation of its laws. 
It was therein held: 















































































141 


(1) That in an action by the State to recover pos¬ 
session of such school lands it is not necessary to a 
recovery that the State should tender a repayment 
of that portion of the purchase money already paid; 

(2) That it will be conclusively presumed in the 
absence of a statute authorizing suit against the 
State that it fully recognizes every just claim a citi¬ 
zen defendant has against it, that in its own way it 
will do justice in regard thereto, and that it has the 
ability to do so. The reasons for enforcing the 
equitable rule which requires a tender to repay pur¬ 
chase money received by one who seeks a rescission 
of the contract of sale do not exist; 

(3) That the provision of the State constitution 
that no money shall be drawn from the treasury but 
in pursuance of specific appropriation made by law 
and the fact that there is no provision of law whereby 
such purchase money could be obtained from the 
treasury indicate the legislative intent that no ten¬ 
der to repay should be required; 

(4) That though it is true that where the State 
becomes a litigant in its own courts its rights must 
be determined by the same rules applicable to other 
litigants, it does not, therefore, follow that the same 
remedy, procedure, or relief will be given by the 
courts to one as to the other; 

(5) That courts have no authority to enforce claims 
against the Government, in whatever form of action 
they may be urged, unless the institution of such ac¬ 
tion, or the recognition of such claim, has been ex¬ 
pressly sanctioned by law; 


142 


(6) That though as a general rule in a suit brought 
by the State the court has power to adjust equities 
growing out of the subject-matter of a suit, this rule 
does not apply to the extent of requiring the State in 
an action brought by it to recover land, to tender 
back purchase money received as a prerequisite to 
having its rights adjudicated when the law has made 
no provision for obtaining money from the treasury. 

United States v. White et at. (17 Fed., 561), holding 
tender to be necessary, was overruled by the Trinidad 
case. In United States v. Budd et at. (43 Fed., 630), 
the patent was alleged to have been issued for land 
other than that contemplated by the statute; it was 
decided that the allegations were not proved and the 
court observed that as no fault on the part of the 
patentee was alleged, the bill should have contained 
an offer to return the purchase money. 

Nor does the reason of the rule apply to a sover¬ 
eign government. It is stated to be as follows: 

The purpose of the rule requiring an offer 
in the bill to do equity by placing the defend¬ 
ant as nearly as possible in statu quo has been 
stated to be to test the good faith of the com¬ 
plainant, to require that he purge himself as 
far as possible of the guilt of complicity in the 
unlawful transaction by declaring his purpose 
and readiness to do equity by restoring as far 
as is in his power the other party to his 
original status. (18 PI. & Pr., 830.) 

THE GOVERNMENT AS GUARDIAN. 

(3) No equity can be created in a party who enters 
into a void transaction where the transaction is forbid¬ 
den by a public law or treaty. 



















































































































































143 


It will be remembered that in Beck v. Flournoy 
Live-Stock & Real-Estate Company (65 Fed., 30) 
the company had attempted to enjoin the defendant, 
who was the Indian agent, from interfering with the 
occupancy by the company and its sublessees of the 
Indian allotments to which it had secured leases, 
which leases were declared void by the statute. 
Quoting from the decision of Judge Thayer therein, 
page 37: 

The company appears to have been organ¬ 
ized for the express purpose of obtaining 
leases of lands situated within the reservation 
that had been or might be allotted to mem¬ 
bers of the Winnebago tribe of Indians. It 
appears to have embarked in the enterprise 
of securing the leases with full knowledge that 
it was an unlawful undertaking, and that the 
Government would dispute the validity of 
whatever leases it might succeed in obtaining 
from the Indians. In other words, the com¬ 
pany deliberately took the chances of violat¬ 
ing the law, in the belief, no doubt, that the 
Government of the United States would be 
powerless to recover possession of the demised 
premises, if possession was actually acquired, 
except by bringing a multitude of suits in 
ejectment. This is the position now assumed 
by the appellee. It asserts with great confi¬ 
dence that the Government must be treated 
as a private landowner; that it can only re¬ 
cover the possession of the leased lands by 
bringing suits in ejectment. It is fair to infer, 
therefore, that the real estate company in¬ 
tended at the outset to assume that position 
and to rely upon that defense. It is also fair 
to infer that it was led to embark in the enter¬ 
prise of leasing the lands in the belief that a 
suit in ejectment would prove a barren remedy 


144 


and that the law might be violated with im¬ 
punity. Under these circumstances it is clear, 
we think, that a court of equity should not in¬ 
terfere, at the instance of the appellee, to ar¬ 
rest any action that the Government of the 
United States may take to vindicate its rights. 
It should leave the appellee in the condition in 
which it has deliberately placed itself, and 

REQUIRE IT TO SEEK REDRESS IN A COURT OF 
LAW FOR WHATEVER DAMAGE IT MAY SUSTAIN 
IN CONSEQUENCE OF ANY WRONGFUL ACT COM¬ 
MITTED by Government officers in eject¬ 
ing IT FROM THE DEMISED PREMISES, IF ANY 
SUCH WRONGFUL ACT IS IN FACT COMMITTED. 

We will certainly not presume that the execu¬ 
tive department of the Government intends 
to adopt any unlawful means to regain pos¬ 
session of the demised premises. But, be this 
as it may, it is not within the legitimate prov¬ 
ince of a court of equity to assist a wrongdoer, 
like the appellee, in retaining the possession of 
propert}^ which it has acquired in open viola¬ 
tion of an act of Congress, when the party 
against whom relief is sought is an officer of 
the United States who is acting under the 
direction and control of the Secretary of the 
Interior. 


And in Pilgrim v. Beck (69 Fed., 895), which was a 
suit similar in character to Beck v. Live Stock Com¬ 
pany (supra), the court, at page 898, lays down this 
doctrine: 


When the leases of the allotted lands were 
taken, the Flournoy Company, and all others 
following its example, knew that, under the 
express provisions of the acts of Congress pro¬ 
viding for the allotments in severalty, an 
absolute restriction against alienation by the 
allottees was enacted, and all power to con¬ 
tract about the same was denied, until the 


















































































































































































































































145 


lapse of the 25 years of occupancy pro¬ 
vided for in the statutes. These parties 
knew, therefore, that the leases obtained 
from the Indians were wholly void, and abso¬ 
lutely worthless. When the present bill was 
filed the decision of the court of appeals in 
the case brought by William H. Beck et al. 
against the Flournoy Live-Stock and Real- 
Estate Company had been rendered, in which it 
was held that these leases were void; the opinion 
in that case having been filed December 10, 
1894. Under these circumstances, it must 
be held that when this bill was filed the com¬ 
plainants knew that the leases under which 
they held had been taken, not only Without 
authority of law, but in absolute defiance of 
the express provisions of the acts of Congress; 
that the invalidity thereof had been judicially 
adjudged by a court of competent jurisdic¬ 
tion; that the continued occupancy of the 
lands by the tenants was without warrant of 
law, and was in direct conflict with the con¬ 
trol over these lands vested in the Interior 
Department of the Government. This being 

TRUE, IT FOLLOWS THAT NO EQUITY IS CRE¬ 
ATED IN COMPLAINANTS BY THE FACT THAT 
THEY HAVE CULTIVATED THESE LANDS DUR¬ 
ING THE SEASON OF 1895 WHICH JUSTIFIES 
THE COURT IN SUSTAINING THE PRESENT BILL 

for their benefit. It may be true that 
many of the subtenants have been in fact 
misled by the representations made by the 
Flournoy Company, or its officers, in regard 
to their rights, and that they have relied 
thereon, but such representations are not 
chargeable against the United States. The 

BILL NOT ONLY WHOLLY FAILS TO SHOW ANY 
LEGAL RIGHT TO THE OCCUPANCY OF THESE 
LANDS ON PART OF THE COMPLAINANTS, BUT 
IN FACT AFFIRMATIVELY SHOWS THAT THIS 


49238—08-10 


146 


OCCUPANCY, AND THE LEASES UPON WHICH IT 
IS BASED, ARE HELD IN VIOLATION OF THE 
LAWS OF THE UNITED STATES, AND IN OPEN 
DEFIANCE OF THE AUTHORITY OF THE UNITED 

States over a subject-matter within the 

PARAMOUNT CONTROL OF THE NATIONAL GOV¬ 
ERNMENT; AND THERE IS NO GROUND UPON 
WHICH THE COURT CAN GIVE ANY CONSIDERA¬ 
TION TO THE FACT THAT THE COMPLAINANTS 
HAVE PLANTED AND CULTIVATED THE CROPS 
NOW GROWING ON THESE LANDS. THE MAN¬ 
AGEMENT AND CONTROL OF THESE LANDS FOR 
THE BENEFIT OF THE INDIANS IS IN THE HANDS 

of the Department of the Interior, and 

IT IS FOR THE OFFICIALS OF THAT DEPART¬ 
MENT TO GIVE WEIGHT TO ANY EQUITIES OR 
CONSIDERATIONS OF HARDSHIP THAT MAY EX¬ 
IST IN FAVOR OF ANY OF THE COMPLAINANTS 

herein. The Indian agent, acting under 
the instructions of the Department, is charged 
with the duty of protecting the interests of the 
Indians, and it is not for the court to inter¬ 
fere with his action on the ground of hardship 
to the complainants. 

And this principle has been enforced by State 
courts as to treaties entered into and laws enacted by 
the Federal Government. In Clark v. Akers (16 
Kans., 166), an action of ejectment was brought by 
Clark against Akers and others for the recovery of cer¬ 
tain real estate which had been conveyed by an 
Ottawa Indian allottee without the consent of the 
Secretary of the Interior. After the restriction had 
been removed the allottee executed another deed to 
another grantee and an action of ejectment was 
brought by the second grantee against the first. The 
court held the first deed absolutely void and declared 
that the payment of the purchase money by the 
























































j 










- 




























































































































































































































































































147 


grantee created no equity in his favor, because he had 
entered into a transaction which was void under a pub- 
lie treaty. At page 171 it is said: 

We agree with the court below that “A deed 
made by an Ottawa Indian at any time prior 
to July 16, 1867, without the consent of the 
Secretary of the Interior, was absolutely void, 
and could not create even an equitable interest 
in the land in favor of the grantee, even 
though he had paid the purchase money and 
taken actual possession.” Or, as stated in the 
second set of findings, “A deed made by an 
Ottawa Indian of land allotted and patented to 
him under the treaty of 1862, conveying such 
land to another Ottawa Indian at any time 
prior to July 16, 1867, without the consent of 
the Secretary of the Interior, was absolutely 

VOID, AND COULD NOT CREATE EVEN AN EQUI¬ 
TABLE ESTATE IN THE LANDS IN FAVOR OF THE 
GRANTEE, EVEN THOUGH HE HAD PAID THE 

purchase money.” And therefore we think 
the said deeds U E” and a F” were wholly void. 
They were void not because of any accident, 
or mistake, or oversight, or irregularity in 
their execution, but they were void because of 
a want of power in Early to alienate or incum¬ 
ber his land in any manner or form except with 
the consent of the Secretary. 

Sheldon v. Donohoe (40 Kans., 346), was a case in 
which Donohoe made a deed purporting to convey to 
Sheldon a tract of land which, under a treaty of the 
United States with the Chippewa Indians (12 Stat., 
1105), could not be by him alienated, leased, or other¬ 
wise disposed of, except to the United States or to 
some member of the same tribe. Sheldon was not 
within the terms of the treaty. He paid Donohoe a 
part of the purchase price and held possession of the 


148 


land for about sixteen years, when Donohoe again 
came into possession. In an action of ejectment by 
Sheldon against Donohoe to recover the land the deed 
was held to be void and the court, following Clark v. 
Akers , held that Sheldon could not acquire any 
equity by reason of the fact that he had paid all of the 
purchase money. At page 349 the court says: 

By the paramount Federal law he was pro¬ 
hibited from taking the title, and therefore he 
can not indirectly build up one by adverse pos¬ 
session, estoppel, or any statute of limitations. 
(,Stevens v. Smith, 2 Kans., 243; Stone v. 
Young , 4 id., 17; Pennock v. Monroe, 5 id., 
578; Clark v. Akers, 16 id., 166; Maynes v. 
Veale, 20 id., 374; McGannon v. Straightlege, 32 
id., 524.) It is true that Sheldon paid Dono¬ 
hoe a considerable sum of money which has not 
been returned, and this fact would weigh 
greatly in favor of Sheldon under other circum¬ 
stances and if he was not barred from acquiring 
title. It has been expressly ruled, how¬ 
ever, THAT A CONVEYANCE MADE IN VIOLATION 
OF A TREATY WILL NOT EVEN CREATE AN 
EQUITABLE ESTATE IN THE GRANTEE, ALTHOUGH 
HE MAY HAVE PAID ALL THE PURCHASE MONEY, 
AND HAVE TAKEN ACTUAL POSSESSION OF THE 

land. ( Clark v. Akers, 16 Kans., 166.) In 
this instance Sheldon enjoyed the use and pos¬ 
session of an improved farm for about sixteen 
years for the money paid, and then, again, it is 
manifest that both parties understood that the 
sale and conveyance were contrary to law, as 
the note and mortgage given for the balance of 
the purchase money stipulated for the making 
of a lawful deed at a future time, when Dono¬ 
hoe and wife should be legally able to do so. 







1 



























































































































































































149 


Where a wife became surety for her husband, giving 
a mortgage on her lands to secure her husband's debt, 
and such suretyship was forbidden by a public statute 
(see Code of Alabama, 1896, secs. 25-29), the mort¬ 
gage being absolutely void by reason of the statute, 
the wife was permitted to cancel the mortgage as a 
cloud on her title without being required to tender 
the payment of the mortgage debt. (Richardson v. 
Stephens , 25 So. Rep., 39.) And yet another reason 
exists, at least in case where the land itself has been 
conveyed by deed and has been occupied for some 
length of time. The allottee would be entitled to a 
fair rental for the time during which the vendee had 
so occupied the land, but that rental value must be 
determined judicially. How, then, could the amount 
of tender be determined in advance? In many 
instances the amount paid to the Indian allottee is 
grossly inadequate and the rental value for a short 
time would greatly exceed the consideration passing 
to the Indian. As said in State of Texas v. Snyder 
(supra), at page 698: 

The rule which requires a vendor to return 
the purchase money paid when he asks rescis¬ 
sion at the hands of a court of equity has foun¬ 
dation in the desire of courts of equity to 
protect all parties, and when its enforcement 
is not called for by the case presented, or 
where the enforcement of the rule is not neces¬ 
sary to the protection of the person against 
whom equitable relief is sought, then it is not 
enforced. Cases arise in which the use and 


150 


occupation of land, sold under circumstances 
which justify rescission, will equal in value the 
sum paid by the vendee, and in such cases it 
would not be necessary to tender or repay the 
purchase money so paid, and a court of equity 
would adjust the equities of the respective 
parties. ( Terrell v. De Witt , 20 Tex., 260; 
McCarty v. Mooder, 50 Tex., 287; Clay v. 
Hart, 49 Tex., 436.) 

If further reasons were required for failure to 
offer to tender the purchase money they could readily 
be found in the rule of law which declares that where 
the plaintiff by reason of his poverty is unable to 
restore the purchase money, an averment in the 
bill to that effect will take the place of the tender. 
Quoting from 18 PL & Pr., page 832: 

There is a possible exception to the rule that 
the plaintiff must allege that he has returned, 
or in his bill must offer to return, the consid¬ 
eration received by him, where the plaintiff 
by reason of his poverty is unable to restore; 
but such inability must, it would seem, be 
alleged in the bill. ( Bowden v. Achor, 95 Ga., 
243; Strodder v. Southern Granite Company, 
94 Ga., 626.) 

In 18 PI. & Pr., page 834, rescission and cancel¬ 
lation of contracts, under the subhead “ Offer to do 
equity/ 7 it is laid down that no offer to restore or 
to place the defendant in statu quo is necessary where 
the contract is absolutely void. The text is sup¬ 
ported by the case of Kelly v. Owen (120 Cal.,) 502, 
in which the court said, at page 510: 

There are exceptional cases where restora¬ 
tion or an offer to restore before suit brought 





























































































































































































































































































151 


is not necessary, as, for instance, where the 
thing received by the plaintiff is of no value 
whatever to either of the parties * * * 

or where the contract is absolutely void. 

(4) A vendee who has notice of the vendor’s inca¬ 
pacity to convey is not entitled to the return of purchase 
price upon avoidance of the contract. 

In these cases the incapacity of the allottees to 
convey or to encumber their lands arises through 
public treaties, agreements, and laws of Congress, 
with knowledge of which the public is charged; 
hence the case would seem to come within the prin¬ 
ciple that a purchaser with notice of a defective 
title or of the incapacity of the vendor to convey 
must stand by his bargain and is not entitled to 
return of the purchase price upon avoidance of the 
contract. It may have been the intention of the 
parties that the purchaser should assume the risk of 
the title and that in many cases must be assumed 
from the nature of the transaction. Unlike a sale of 
chattels, where possession is the only evidence of 
title, and in most cases the only evidence the pur¬ 
chaser can obtain, no warranty can be implied; the 
title of land depends upon writings, presumably of 
equal access to either; and of these writings one 
party is as able to judge as the other. In these 
cases the incapacity of the vendor to convey was 
apparent from treaties, agreements, and laws, the 
existence of which was not only known, but notori¬ 
ously so. It may, therefore, well be assumed that 


152 


the vendees bargained with the vendors upon the 
invalidity of those treaties, agreements, and laws 
and that they assumed the risk. Authority for this 
doctrine may be found in 

Warvelle on Vendors, vol. 2, page 1094. 

18 Col. Rep., 433. 

30 La. Ann., 353. 

119 Mich., 343. 

A. A. Richards, 

Special Assistant to the Attorney General . 


O 


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